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BUSINESS AND CORPORATE LITIGATION COMMITTEE FORUM:

AN INTRODUCTION TO BUSINESS COURTS AND COMPLEX


LITIGATION COURTS - WHAT WORKS BEST AND WHY
San Francisco
August 13, 2007

TABLE OF CONTENTS

1. Mitchell L. Bach and Lee Applebaum, A History of the Creation and Jurisdiction of
Business Courts in the Last Decade, 60 Bus. Law 147 (2004)1
AVAILABLE IN CD-ROM ONLY

2. Florida Business Courts


a. Orlando-Orange County – Ninth Judicial Circuit – Business Court Procedures
b. Miami-Dade County – Eleventh Judicial Circuit – Administrative Order
c. Tampa-Hillsborough County – Thirteenth Judicial Circuit – Administrative Order
AVAILABLE IN CD-ROM ONLY

3. Georgia - Business Case Division of the Fulton Superior Court – Order


AVAILABLE IN CD-ROM ONLY

4. Illinois – Circuit Court of Cook County – Standing Order


AVAILABLE IN CD-ROM ONLY

5. Massachusetts – Suffolk Superior Court – Rules for Filing in Business Litigation Session
and Notice to the Bar
AVAILABLE IN CD-ROM ONLY

6. State of Maryland - Business and Technology Court Task Force Report


AVAILABLE IN CD-ROM ONLY

7. State of New York – Administrative Order


AVAILABLE IN CD-ROM ONLY

8. North Carolina Business Court – Amended General Rules of Practice and Procedures
AVAILABLE IN CD-ROM ONLY

9. Philadelphia Commerce Case Management Program – Procedure for Disposition of


Commerce Program Cases Filed on and after January 1, 2000
AVAILABLE IN CD-ROM ONLY

1
Copyright 2004 by the American Bar Association. Reproduced from The Business Lawyer, Vol.
60, No. 1 (November 2004), with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic
data base or retrieval system without the express written consent of the American Bar
Association.

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10. State of Rhode Island and Providence Plantations Business Calendar – Order
AVAILABLE IN CD-ROM ONLY

11. Websites and Links

12. Judicial Council of California -- Fact Sheet – Complex Civil Litigation Program (January
2007)
AVAILABLE IN CD-ROM ONLY

13. Paula L. Hannaford-Agor, Nicole L. Mott and Timothy F. Fautsko, National Center for
State Courts and California Administrative Office of Courts, Evaluation of the Centers
for Complex Civil Litigation Pilot Program (June 30, 2003)
AVAILABLE IN CD-ROM ONLY

14. Complex Civil Litigation Pilot Program in Maricopa County, Joint Report Submitted to
the Arizona Supreme Court submitted by the Superior Court in Maricopa County and the
Complex Civil Litigation Court Evaluation Committee (December 2006)
AVAILABLE IN CD-ROM ONLY

15. The Business Litigation Session Resource Committee, The Business Litigation Session in
Massachusetts Superior Court: A Status Report (February 2003)
AVAILABLE IN CD-ROM ONLY

16. Chief Justice’s Commission on the Future of the North Carolina Business Court, Final
Report and Recommendation (October 28, 2004)
AVAILABLE IN CD-ROM ONLY

17. Report of the Office of Court Administration to the Chief Judge on the Commercial
Division Focus Groups (July 2006)
AVAILABLE IN CD-ROM ONLY

18. Lee Applebaum and Merrick L. Gross, Business Courts (Revised July 2007)

19. Lee Applebaum, Complex Litigation Courts and Business Courts: Some Brief
Observations on Connections and Similarities (August 13, 2007)

20. Bios

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WEBSITES AND LINKS
(Revised July 2004)

BUSINESS COURT WEBSITES OR RELATED LINKS

Atlanta, Fulton County Superior Court Business Case Division,


www.gasupreme.us/amended_rules/bus_court.pdf

Baltimore City Circuit Court, Business and Technology Case Management Program,
www.baltocts.sailorsite.net/civil/BTCMP/BTCMP.html

Chicago, Circuit Court of Cook County Commercial Calendars,


http://www.cookcountycourt.org/divisions/law/CommercialCalendars.asp

Delaware Court of Chancery,


http://courts.delaware.gov/Courts/Court%20of%20Chancery/

Las Vegas, Eighth Judicial District Court of Nevada, Business Court,


http://www.co.clark.nv.us/clarkcountycourts/ejdc/courts-and-judges/specialty-courts.html

Maine, Business and Consumer Docket


http://www.courts.state.me.us/opinions/adminorders/JB_07_1%20BCD.htm

Maryland, Business and Technology Case Management Program,


http://www.courts.state.md.us/businesstech/

Massachusetts, Business Litigation Session


http://socialaw.gvpi.net/sll/lpext.dll/sll/bls?f=templates&fn=main.htm (fee)

Miami, Eleventh Judicial Circuit Complex Business Litigation Section,


http://jud11.flcourts.org/programs_and_services/complex_business_litigation.htm

New York, Supreme Court Commercial Division, http://www.nycourts.gov/comdiv/

North Carolina Business Court, http://www.ncbusinesscourt.net/

Oregon, Lane County Circuit Court Commercial Court Program,


http://www.ojd.state.or.us/lan/Commercial%20Court/Comm%20Court.htm

Orlando, Ninth Judicial Circuit Complex Business Litigation Court,


http://www.ninja9.org/Courts/Business/Index-BC.htm

Philadelphia, Court of Common Pleas Commerce Case Management Program,


http://courts.phila.gov/common-pleas/trial/civil/commerce-program.html

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Reno, Second Judicial District Court of Nevada, Business Court,
http://www.leg.state.nv.us/CourtRules/SecondDCR.html;
http://www.washoecourts.com/index.cfm?page=courtcal&dept=B9

Rhode Island, Superior Court Business Calendar,


http://www.courts.state.ri.us/superior/publisheddecisions.htm

Tampa, Thirteenth Judicial Circuit Complex Business Litigation Division,


http://www.fljud13.org/division_genciv_cbld.htm

COMPLEX LITIGATION PROGRAM WEBSITES OR RELATED LINKS1

Arizona, Superior Court in Maricopa County, Complex Civil Litigation Pilot Program
http://www.supreme.state.az.us/courtserv/ComplexLit/default.htm;

California, Alameda County Superior Court, Complex Civil,


http://www.alameda.courts.ca.gov/courts/news/2000/pr000327.shtml

California, Los Angeles Superior Court, Complex Civil,


http://www.lasuperiorcourt.org/courtrules/Chapter7.htm#7.3k

California, Orange County Superior Court, Complex Civil,


http://www.occourts.org/complexcivil/

California, San Francisco Superior Court, Complex Civil,


www.sfgov.org/site/uploadedfiles/courts/complex_lit.pdf

California, Santa Clara County Superior Court, Complex Civil,


http://www.sccomplex.org/home/index.htm

Connecticut, Superior Court, Complex Litigation Docket,


http://www.jud.ct.gov/external/super/spsess.htm#ComplexLitigationDocket

Philadelphia, Court of Common Pleas Complex Litigation Center,


http://courts.phila.gov/pdf/civil2001/clc.pdf

Pittsburgh, Court of Common Pleas of Allegheny County, Complex Case Judge


set by Local Rule, http://www.pabulletin.com/secure/data/vol36/36-44/2149.html

1
We are not including complex litigation tracks within differentiated case management systems, unless
specific judges are assigned to those tracks.

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OTHER RESOURCES

National Center for State Courts

(a) Complex Litigation Resource Guide,


www.ncsconline.org/wc/CourTopics/ResourceGuide.asp?topic=ComLit#Comp

(b) Business Courts Resource Guide,


www.ncsconline.org/wc/CourTopics/ResourceGuide.asp?topic=SpecCt&guide=170

(c) State Links for Business Courts and Complex Litigation,


http://www.ncsconline.org/wc/CourTopics/statelinks.asp?id=10

Journal of Business and Technology Law, University of Maryland School of Law,


http://www.law.umaryland.edu/journal/jbtl/index.asp;
http://www.law.umaryland.edu/journal/jbtl/documents/bus_tech_courts.doc

Bach, Mitchell L., and Lee Applebaum, A History of the Creation and Jurisdiction of
Business Courts in the Last Decade, 60 Business Lawyer 147 (2004)
http://www.finemanlawfirm.com/publications/final_online.pdf

Florida State Courts, Task Force on Management on Cases Involving Complex


Litigation, Reference Materials,
http://www.flcourts.org/gen_public/cmplx_lit/reference.shtml

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BUSINESS COURTS
(Revised July 2007)

I. WHAT IS A BUSINESS COURT?

A. NATURE OF JURISDICTION
1. Are there specifically defined categories of cases within court’s jurisdiction?
2. Are there specifically excluded categories of cases outside court’s jurisdiction?
3. Is a complexity component required?
4. Is there a jurisdictional amount in controversy for non-equity claims?

B. JUDICIAL ASSIGNMENT
1. All matters typically heard by a single judge.
2. If there is more than one judge on a business court, do judges act as mediators
in each other’s cases?

II. CREATING A BUSINESS COURT

A. MECHANISMS FOR CREATING BUSINESS COURTS


1. Legislation
2. Administrative Order of Court

B. PERSONS AND ENTITIES WHO MAY BE INVOLVED


1. Judiciary/Administrative Office of Courts
2. Bar
a. Is the effort solely among “business lawyers”?
b. Are various Bar constituencies engaged in the process?
3. Legislature
4. Governor’s Office
5. Business Community
6. General Community

C. STUDY AND RESEARCH


1. Look at structure and experience in jurisdictions with business courts.
2. Study what types of business court programs are most compatible to the
circumstances in the interested jurisdiction.
3. Contact members of Courts and the Bar across the Country with experience
concerning business courts.
4. Obtain reports, recommendations, studies and other business court literature.

D. CONSIDER ALL PERSPECTIVES


1. Consult and confer with all segments of community in developing effort.
2. Hold discussions over concerns and issues raised in formative process.

E. FINANCIAL AND RESOURCE CONSIDERATIONS


1. Will there simply be a reallocation of existing funds and judicial resources?
2. Will new funding be sought, and if so what will the source of funds be?

III. COURT OPERATION

A. JUDGES
1. How many judges will be assigned?
2. How will judges be selected?
3. What role will judicial education play?
4. How long will judges serve?

B. STAFF
1. Will there be law clerks?
2. Will business court have separate administrative staff?

C. OPINIONS
1. Will opinions be required in any or all cases?

D. USE OF TECHNOLOGY
1. As a case management tool.
2. As a case presentation tool.

IV. JURISDICTIONS WITH BUSINESS COURTS

A. DELAWARE COURT OF CHANCERY


1. Traditional equity jurisdiction over business disputes.
2. Expansion of jurisdiction to mediate and/or adjudicate certain monetary
business disputes, expressly including technology disputes.
3. Long history of quality in decision making, and body of opinions/authority.

B. NEW YORK SUPREME COURT COMMERCIAL DIVISION


1. Broad jurisdiction over specific types of equity and non-equity cases.
2. Located in 10 different County or District Supreme Courts (trial courts).
3. Jurisdictional amounts in controversy vary by County ($25,000 to $100,000).
4. Uniform rules across all County Commercial Division.
5. Business Lawyers volunteer as settlement masters/mediators.

C. CIRCUIT COURT OF COOK COUNTY (CHICAGO)


COMMERCIAL CALENDARS
1. Only hear certain non-equity cases.
2. Broad jurisdiction with specific case types.
3. Relatively low amount in controversy; large volume of cases.
4. Equity cases heard in separate Chancery Division.

D. NORTH CAROLINA BUSINESS COURT


1. State-wide jurisdiction.
2. Seven specific case categories automatically within jurisdiction.

2
3. Other cases may be admitted if involve business dispute of a complex nature.
4. Mandatory mediation.
5. Extensive use of technology.

E. NEW JERSEY
1. Two large counties where all complex business cases go to specific judge.
2. Four counties with pilot program where certain business cases may go to
specific Chancery Judge.
3. New Jersey has an existing specialized case track for complex case assignment
to single judge, which includes, but is not limited to, complex business cases.

F. PHILADELPHIA’S COMMERCE CASE MANAGEMENT PROGRAM


1. Hears broad list of business and commercial disputes, non-equity and equity.
2. No complexity requirement (jurisdictional minimum $50,000).
3. Business Lawyers volunteer as settlement masters/mediators.
4. Experimenting with new ADR procedure.

G. SUFFOLK SUPERIOR COURT (BOSTON), BUSINESS LITIGATION


SESSION
1. Hears broad list of business and commercial disputes, non-equity and equity.
2. Some complexity requirements.
3. Functions as a regional court for Boston and three surrounding counties.

H. LAS VEGAS AND RENO, NEVADA BUSINESS COURTS


1. Some designated categories of business disputes.
2. Will hear other business cases if complex.

I. RHODE ISLAND SUPERIOR COURT BUSINESS CALENDAR


1. Will hear a broad range of business and commercial disputes.
2. Also hears state-law insolvency proceedings and complex cases involving
government parties.
3. Use of non-lawyers in mediation as well as lawyers.

J. MARYLAND’S BUSINESS AND TECHNOLOGY CASE MANAGEMENT


PROGRAM
1. Hears only complex business and commercial cases.
2. Expressly includes technology/computer/bio-tech disputes in its jurisdiction.
3. Statewide in all counties.
4. Detailed rules on judicial education.

K. FLORIDA’S NINTH JUDICIAL CIRCUIT (ORLANDO) COMPLEX


BUSINESS LITIGATION COURT
1. Broad list of cases, equity and non-equity.
2. Amended to include some complexity requirement.
3. Minimum amount in controversy $75,000.
4. Mandatory mediation.

3
L. BUSINESS CASE DIVISION OF FULTON COUNTY SUPERIOR COURT
(ATLANTA)
1. Pilot program.
2. Limited list of designated areas of dispute that must be heard.
3. Other cases must be complex business and commercial cases.
4. Amount in controversy must be $1 Million or more.
5. Flexible development of this court in pilot process.
6. Extensive use of technology.
7. Recent expansion of a party’s ability to request inclusion

M. HAWAII, FIRST CIRCUIT COURT (HONOLULU)


1. Assigning certain contract disputes to arbitration for the first time.

N. OREGON, LANE COUNTY (EUGENE) CIRCUIT COURT COMMERCIAL


COURT PILOT PROGRAM
1. Presiding judge determines what cases get in program, but lengthy list of case
types listed for judicial consideration.
2. Includes cases types found in other broad jurisdiction business courts, as well
as product liability, mass tort and environmental litigation, among other types.
3. Cases outside of Lane County may be transferred to Commercial Court.
4. Parties have good faith obligation to attempt early ADR.

O. FLORIDA’S ELEVENTH JUDICIAL CIRCUIT (MIAMI) COMPLEX


BUSINESS LITIGATION SECTION
1. Broad list of cases, equity and non-equity.
2. Minimum amount in controversy $75,000 required in certain cases.
3. ADR mandatory.

P. FLORIDA’S THIRTEENTH JUDICIAL CIRCUIT (TAMPA) COMPLEX


BUSINESS LITIGATION DIVISION
1. Broad list of cases, equity and non-equity.
2. Minimum amount in controversy $75,000 required in certain cases.

Q. MAINE’S BUSINESS AND CONSUMER DOCKET


1. Includes both business to business and consumer v. business litigation, but no
mandatory case list.
2. Judges given broad discretion in determining cases that will be heard and in
shaping the process; complexity issues are important factors.
3. ADR strongly endorsed.

R. OTHER JURISDICTIONS
1. Oklahoma legislature passed law allowing Supreme Court to create business
courts in cities with population in excess of 300,000, but no court rules effecting
that legislation put in place yet.

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2. Michigan had legislatively created “Cybercourt” which was never funded;
legislation is being studied to create a business court.
3. Business case track being developed in Cobb County, Georgia.
4. South Carolina is moving to develop complex business court pilot program in
three counties.
5. Studies into creating business court program or dockets in Missouri, New
Hampshire and Ohio.

V. OBJECTIVES

A. CREATING A BODY OF LAW


1. Create a body of law that is reasoned, consistent, increases predictability and
ability to assess risk.
2. Will there be written opinions?

B. DEVELOPING SPECIALIST JUDGES


1. Judges who hear business cases consistently will develop an expertise in how
to handle the law in those cases.
2. Judges who hear business cases consistently will develop an expertise in how
to handle complexities of those cases.
3. Judges will also develop an understanding of how business parties and their
counsel function and operate in litigating and settling cases.

VI. TYPICAL POINTS OF DISCUSSION

A. ARGUMENTS, PERCEPTIONS AND REALITIES


1. Is a business court an elitist idea or a wise use of resources beneficial to all
cases on the docket?
2. Will business courts siphon off best judges, or do judges simply go to their
areas of interest?
3. Will a business court be a burdensome expense?
4. Will court decisions show a bias towards businesses? Is this generally an
irrelevant argument since the parties are typically both businesses, and even
where a non-business may be a party, what legitimate basis is there to assume that
the mandate of any business court is to favor businesses over the government or
individuals independent of how the law in any individual case should be applied?
5. Will parties be denied a jury and other procedures, or do most business courts
keep basic rules of their civil trial divisions?
6. Will the judges in a civil trial division not assigned to the business court want
to “lose” those cases from their dockets?
7. Should there be any sort of rotation of judges on a business court? What
amount of time on the bench is needed to provide the value of judicial
specialization?

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COMPLEX LITIGATION COURTS AND BUSINESS COURTS:
SOME BRIEF OBSERVATIONS ON CONNECTIONS AND SIMILARITIES

By

Lee Applebaum1

In a 1983 article, Judge Posner identified at least two types of specialization in

connection with judging: specialization of function and specialization of subject matter.

The Honorable Richard A. Posner, Will the Federal Courts of Appeals Survive Until

1984? An Essay on Delegation and Specialization of the Judicial Function, 56 S. Cal. L.

Rev. 761, 778-780 (1983) (hereinafter “Posner”). He observed that specialization in a

specific subject matter had largely been rejected in the federal appellate courts.2 He

adduces the less obvious concept, however, that appellate “judges are specialized – to

judging [,a]nd it goes without saying, to the law.” Id. at 778 & n.44.

Complex litigation courts and business courts somewhat map these ideas. The

complex litigation court model is not focused primarily upon subject matter, but on the

1
Lee Applebaum is a litigation partner with Fineman, Krekstein & Harris, P.C. in
Philadelphia. He is Vice-Chair of the Committee on Business and Corporate Litigation’s
Subcommittee on Business Courts within the American Bar Association’s Section of
Business Law. He has written numerous articles on business courts and spoken
extensively on the topic. The observations herein were written in conjunction with the
program, Business and Corporate Litigation Committee Forum: An Introduction to
Business Courts and Complex Litigation Courts - What Works Best and Why, being
presented at the Section of Business Law’s Annual Meeting in San Francisco on August
13, 2007. More elaborate discussions of what makes up business courts and complex
litigation courts can be found in the other materials provided in connection with that
program. These comments address some commonalities that may not otherwise be
addressed in those materials; and hopefully adduce some useful points for discussion.
2
Even the federal appellate courts have a specialized subject matter tribunal, the United
States Court of Appeals for the Federal Circuit. Judge Pauline Newman described the
Federal Circuit’s formation as addressing a demand for coherence in patent law. The
Honorable Pauline Newman, The Sixth Abraham L. Pomerantz Lecture: Commentary on
the Paper by Professor Dreyfuss, 61 Brooklyn L. Rev. 53, 55 (1995).

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composition of factors affecting the legal process.3 The judge able to handle these cases

well must master the function of judging, and the generally applicable legal principles

that cut across all case types.

Business courts may include a complexity component,4 but always are defined by

a subset of legal subject matter that is less than the universe of all potential disputes. In

3
In California’s complex litigation court these factors may include: numerous pre-trial
motions that raise difficult or novel legal issues requiring time-consuming resolution;
large numbers of witnesses; voluminous documentary evidence; large numbers of parties
with different counsel; coordinated actions; or cases calling for “substantial post
judgment judicial supervision.” California Court Rule 1800(b). See generally Jeffrey W.
Stempel, A More Complete Look at Complexity, 40 Ariz. L. Rev. 781 (1998).
4
For example, Maryland Rule 16-205(c), addressing the assignment of cases to
Maryland’s Business and Technology Case Management Program, provides:
On written request of a party or on the court's own
initiative, the Circuit Administrative Judge of the circuit in
which an action is filed or the Administrative Judge's
designee may assign the action to the program if the judge
determines that the action presents commercial or
technological issues of such a complex or novel nature that
specialized treatment is likely to improve the
administration of justice. Factors that the judge may
consider in making the determination include: (1) the
nature of the relief sought, (2) the number and diverse
interests of the parties, (3) the anticipated nature and extent
of pretrial discovery and motions, (4) whether the parties
agree to waive venue for the hearing of motions and other
pretrial matters, (5) the degree of novelty and complexity of
the factual and legal issues presented, (6) whether business
or technology issues predominate over other issues
presented in the action, and (7) the willingness of the
parties to participate in ADR procedures.
There are no specific types of commercial or technological disputes that are mandated for
inclusion in the Maryland business court’s jurisdiction.
In North Carolina, which provided a model for the Maryland program, there are
similar guidelines addressing complexity factors that would indicate a case is appropriate
for inclusion in the North Carolina Business Court. North Carolina Superior Court Rule
2.1(d). More recently, the North Carolina Business Court’s jurisdiction was expanded to
require mandatory inclusion of certain specific types of disputes, e.g., corporate
governance, anti-trust, trademark and cases involving the Internet, electronic commerce,
and biotechnology. N.C. Gen. Stat. § 7A-45.4.

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these courts, the judge either possesses specialized knowledge of commercial and

business law, or will develop that knowledge through repeatedly hearing cases arising

from this subject matter.

There is no pure distinction separating complex litigation court cases from

business court cases.5 There will be certain types of subject matter that tend toward

complexity, and these will repeatedly appear in the complex litigation judge’s court.

Undoubtedly, these will include complex business and commercial cases.6 Thus, the

complex litigation judge will develop some experience in these areas.7

Likewise, there are business courts that will only hear complex business or

commercial cases, such as the North Carolina Business Court or Maryland’s Business

and Technology Case Management Program8; but even in business courts of broader

jurisdiction requiring no special complexity element as a part of their jurisdiction,9

5
Nor are the two inherently mutually exclusive. Mitchell L. Bach and Lee Applebaum, A
History of the Creation and Jurisdiction of Business Courts in the Last Decade, 60 Bus.
Law. 147, 205-206 (2004) (hereinafter “Business Court History”).
6
Under California Court Rule 1800(c), cases recognized as provisionally complex
include antitrust, trade regulation and securities claims, among others. As stated in the
December 2006 “Joint Report to the Arizona Supreme Court Submitted by the Superior
Court in Maricopa County and the Complex Civil Litigation Court Evaluation
Committee” concerning the progress of the Complex Civil Litigation Program in
Maricopa County (Phoenix), there were a significant number of contract cases in the
program, along with some cases involving anti-trust, securities and shareholders
derivative litigation; and all but one case involved a business on one or both sides of the
dispute. Id. at page 4.
7
Under Arizona Rule of Civil Procedure 8(i)(2)(F), in addition to the complexity factors
found in the California program, another factor favoring a complex case designation is
whether: “The case would benefit from permanent assignment to a judge who would have
acquired a substantial body of knowledge in a specific area of the law….”
8
Supra note 4.
9
These courts, such as the Supreme Court of New York’s Commercial Division, the
Philadelphia Court of Common Pleas Commerce Case Management Program and the
more recently created business courts in Tampa, Miami and Orlando, Florida, may
include even non-complex cases within their jurisdiction if there is a minimum amount in

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complex commercial and business actions are inevitably part of the inventory. Thus, the

business court judge in either complex or broad jurisdiction business courts will develop

skills in handling complex litigation.

Judge Posner’s observation of a specialized function in appellate courts of general

jurisdiction is that the function of judging itself is a form of specialization, i.e. judges are

people who have dedicated their vocational lives to judging, and in doing so have

developed skill, knowledge and wisdom in being able to make judicious decisions. Such

people stand in contrast to lawyers (who are not making these kinds of legal decisions in

their practice and are dedicating time to non-legal tasks) or those who might be part-time

judges, like federal regulatory commissioners or most arbitrators. Posner at 778.10

A complex litigation court is not co-extensive with this idea of judging qua

judging as a specialized function. In creating a complex litigation court, there is an

additional specialization in the judging function. Thus, the complex litigation judge is not

just a specialist because he or she is judging, but is a specialist in judging certain kinds of

cases from a case management perspective. Recognizing the great significance of a well

run and respected legal process, the complex litigation judge specializes in judicial

management skills; in not simply deciding wisely, but in putting difficult cases in a

position where wise decisions can be made.11 Put another way, the complex litigation

judge becomes expert in understanding the interaction between difficult cases and the

dispute and the cases fall into certain defined subject matter categories. See also Business
Court History at 223-228.
10
The thought comes to mind of the professional sports official whose work is seasonal,
rather than dedicated to study and practice on a year-round basis.
11
California Court Rule 1800(a) states that a complex case is one that “requires
exceptional judicial management to avoid placing unnecessary burdens on the court or
the litigants and to expedite the case, keep costs reasonable, and promote effective
decision making by the court, the parties and counsel.” (Emphasis added).

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legal process, and learns how to manage the forum in which the parties and litigants can

progress in moving toward sound decisions that command respect and appreciation. 12

The complex litigation judge’s specialty is to make the unclear more clear, the

disorderly more orderly and to have the firmness and determination to remove doubt

from those participating in the process. This judge is like the captain of a ship during a

storm. All others may doubt, but the captain maintains the focus and clarity to instruct,

command and guide. The others rely upon the captain’s leadership; and their trust in that

leadership allows them to play their roles fully, without confusion or half-heartedness, in

getting through that storm. A good captain likewise recognizes that he cannot carry out

every function on the ship, but must trust others to do their jobs and provide information

that will inform the decisions that can guide them all to port safely.

Thus, establishing a complex litigation court necessarily creates this sub-

specialized set of judges within the judging specialty. The goal of this specialization is to

manage cases in such a way as assure that: (1) a decision can be timely made; and (2) the

case is presented in such a way that a decision can be judiciously made. Complex case

management that fails to meet these objectives could drag on for years, with a series of

piecemeal, non-conclusive, decisions; where final resolution comes from exhaustion

12
Of course, our expectations must also be managed. Shortly before his death, Chief
Justice John Marshall wrote: “Though the hope of deciding causes to the mutual
satisfaction of the parties would be chimerical, that of convincing them that the case has
been fully and fairly considered, that due attention has been given to the arguments of
counsel, and that the best judgment of the Court has been exercised on the case, may be
sometimes indulged. Even this is not always attainable. In the excitement produced by
ardent controversy, gentlemen view the same object through such different media, that
minds not unfrequently receive therefrom precisely opposite impressions. The Court,
however, must see with its own eyes, and exercise its own judgment, guided by its own
reason.” Mitchel v. United States, 34 U.S. 711, 723 (1835).

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more than a global address of all important issues. This is destructive to confidence in

the court system and to efficient docket operation.

Similarly, business courts are creating a specialized set of judges who can make

timely and informed decisions that instill confidence in the court system and create

efficiency. Where cases are capably handled and decisions are reasoned, explained and

based upon sound and developed knowledge of the relevant law, even the losing party

will have less about which to complain. Weakly reasoned opinions, unexplained results

or an unevenly handled case management process provide the loser with grounds to gripe

about injustice; and may even give the winner a sense that the result was more fortuitous

than fair – likewise creating doubt in the system’s reliability. Under such circumstances,

litigants and lawyers may well turn to other forums (arbitration, mediation, federal court

or even other states’ business courts) to obtain a greater sense of order and predictability.

The specialized business court is aimed, in part, at reducing this doubt and stopping this

flight. Mitchell L. Bach and Lee Applebaum, A History of the Creation and Jurisdiction

of Business Courts in the Last Decade, 60 Bus. Law. 147, 152, 183 (2004); Ad Hoc

Committee on Business Courts, Business Courts: Towards a more Efficient Judiciary, 52

Bus. Law. 947, 954 (1997).

In sum, both the complex litigation court and the business court are based upon

judicial specialization, aimed at improving the reliability of decision making and

establishing courts that engender public trust. Ultimately, both are anchored in having

the right judges for the job.13

13
See, e.g., John J. Gibbons, The Quality of Judges is what Counts in the End, 61
Brooklyn L. Rev. 45 (1995).

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Lee Applebaum
Lee Applebaum is a partner in the Philadelphia firm of Fineman, Krekstein & Harris,
P.C.’s litigation group, focusing his work on business and commercial matters. He is the
long standing vice chair of the Business Courts Subcommittee of the ABA Committee on
Business and Corporate Litigation, and was chair of the Philadelphia Bar Association’s
Business Litigation Committee in 2005 and 2006, which works co-operatively with
Philadelphia’s Commerce Court. He is co-author of A History of the Creation and
Jurisdiction of Business Courts in the Last Decade, 60 Bus. Law. 147 (2004), and over
the last 4 years has been the coordinating editor and a co-author of the Business Courts
chapter in the ABA’s Annual Review of Developments in Business and Corporate
Litigation. Mr. Applebaum has spoken nationally on business courts numerous times,
including at the first two meetings of the American College of Business Court Judges.
He has written and spoken extensively on Philadelphia’s Commerce Court, and is
coordinating a project between Philadelphia lawyers and law students in creating a
summary, by topic, of the over 700 opinions issued by that business court.

{00053409;v1}
SUPERIOR COURT OF ARIZONA
IN MARICOPA COUNTY
From the Chambers of Central Court Building Phoenix, Arizona 85003
Hon. Janet E. Barton 101/201 West Jefferson PHONE (602) 506-5340
Suite 7A

BIOGRAPHICAL INFORMATION

Janet E. Barton, a Judge of the Maricopa County Superior Court, obtained her
undergraduate degree in Accounting from the University of Kentucky in 1975. After
working for nearly seven years in private industry in Lexington, Kentucky, Janet enrolled
in the University of Kentucky College of Law, graduating With Distinction in 1985.

Janet was admitted to the State Bar of Arizona and joined the law firm of Snell & Wilmer
in 1985. From 1991, until her appointment to the bench in July of 2000, Janet was a
partner in the firm. During her 15 years with Snell & Wilmer, Janet practiced primarily
in the areas of commercial and state and local tax litigation.

Janet is a Fellow of the Arizona Bar Foundation and a member of the American, Arizona
State, and Maricopa County Bar Associations. She is also a member of the National
Conference of State Trial Judges and the American College of Business Court Judges,
serving as the Treasurer for that organization. Within the Maricopa County Superior
Court, Judge Barton is the Associate Presiding Judge for the Civil Department, one of the
three Complex Civil Litigation Court Judges, Chair of the Court’s Jury Management
Committee and a member of the Court’s Judge Pro Tem Committee. Judge Barton also
serves on the Board of Directors of the Arizona Trial College, and is a member of the
Lorna Lockwood Inn of Court, the Arizona Town Hall and Soroptimist International of
Phoenix.

Judge Barton’s is located in the Central Court Building, Suite 7A.


JUDGE ELIHU M. BERLE
Superior Court of California
County of Los Angeles
111 North Hill Street, Dept. 42
Los Angeles, California 90012
(213) 974-5659
Fax (213) 680-2071

Judicial Appointment

1996 Appointed to the Superior Court of California,

Superior Court Assignments

1999-present Civil trials (jury and non-jury); individual direct calendar court
Stanley Mosk Courthouse (Central Civil)
Los Angeles, California

1996-1998 Felony jury trials and criminal calendar department


Clara Shortridge Foltz Criminal Justice Center (CCB)
Los Angeles, California

Court of Appeal Assignment (By Chief Justice)

1/3 - 3/31 Justice Pro Tempore


2000 Court of Appeal of the State of California
Second Appellate District, Division Four

Judicial Activities

Judicial Council of California Civil & Small Claims Advisory


Committee (Chair 2002-2006; member 1999-2006)

Los Angeles Superior Court


Civil & Small Claims Committee (chair 2005 – 2006)
Rules Committee (chair 2001- present; member 1998-)
Executive Committee (1998, 1999)
Automation (Technology) Committee (1998- )

1
Judicial/Professional Organizations

The National Judicial College


Reno, Nevada
Member of the Board of Trustees (2002- )

National Conference of State Trial Judges (ABA Judicial Division)


Chair (2004-2005)

American Bar Association


Judicial Liaison to Litigation Section (2006-)
Judicial Liaison to the ABA Business Law Section (1999-02)
Judicial Liaison to the Committee on Business Courts (1997-02)
Bench/Bar Bankruptcy Council (2005- )

Court of Appeal Published Opinions (Authored as Justice Pro Tempore)

Simi Valley Adventist Hospital v. Bonta (2000) 81 Cal. App. 4th


346
Pacific Custom Pools, Inc. v. Turner Construction Co. (2000)
79 Cal. App. 4th 1254

Other Publications

California Civil Appellate Practice, "Applications and Motions,"


California Continuing Education of the Bar (3rd Edition,
1996; Revisions 1997-2006)

California Civil Appellate Practice, "Applications and Motions,"


California Continuing Education of the Bar (2nd Edition,
1985)

National Judicial College Alumni Magazine, A Proposal for


Civility in Litigation, Vol. XIII, No. 4 (1998)

abtl Report, "A Modest Proposal from the Bench," Vol. XX,
No. 1 (1997)

abtl Report, "The Case for the Master Calendar System," Vol. IV,
No. 1 (1979)

2
Lectures and Programs

American Bar Association, Bench/Bar Bankruptcy Conference,


judicial panelist: “The Effect of Bankruptcy on State Court
Litigation” (Washington, D.C., 2005)

American Bar Association, Business Law Section, judicial


panelist: California’s Complex Litigation Courts” (Seattle,
2004)

University of Maryland School of Law /American Bar Association


Second Annual Symposium, judicial panelist: Taking
Care of Business: Business and Technology Courts in the
21st Century (Baltimore, 2003)

American Bar Association, Litigation Section and Young Lawyers


Division, judicial panelist: Judge, Juror or Arbitrator - Finding
the Best Factfinder (ABA Annual Meeting, San Francisco,
2003)

American Bar Association, Torts and Insurance Practice Section,


judicial panelist: The Doctrine of Reasonable Expectations in
Contract Interpretation (ABA Annual Meeting, Atlanta, 1999)

American Bar Association, Litigation Section, co-chair of program:


"Confidentiality Agreements" (ABA Annual Meeting, Toronto,
1988)

National Conference of State Trial Judges / National Judicial College,


judicial panelist: Managing Complex Litigation Cases (ABA
Annual Meeting, San Francisco, 2003)

California Administrative Office of the Courts, judicial panelist:


Workshop on Civil Case Management (San Francisco and
Sacramento, 2002)

3
4
5
JUDGE ALBERT DIAZ
North Carolina Business Court
832 E. 4th St. Suite 9600
Charlotte, North Carolina 28202
(704) 686-0114 albert.diaz@aoc.nccourts.org

EXPERIENCE

SUPERIOR COURT JUDGE November 2001-Present


Charlotte, North Carolina

Serve on trial court of general jurisdiction. Presiding judge in over 100 civil/criminal jury and bench trials
throughout the state of North Carolina. Rule on pretrial motions and prepare written orders. Serve as one of three
North Carolina Business Court Judges. Present continuing judicial education courses at Conference of North
Carolina Superior Court Judges. Serve as faculty member for orientation of new superior court judges.

TRIAL ATTORNEY August 1995-October 2001


Hunton & Williams
Charlotte & Raleigh, North Carolina

Handled general commercial litigation--trial and appellate--for international law firm. Represented clients in cases
involving construction law, bankruptcy, international commercial law, labor law, professional malpractice,
insurance law, copyright and trademark law, lender liability, consumer finance, energy and telecommunications,
and environmental law. Appeared in state and federal trial and appellate courts, arbitration hearings, and
mediations. Supervised document discovery for complex business cases, including preparation of document
databases.

APPELLATE GOVERNMENT COUNSEL October 1991-July 1995


Office Of The Judge Advocate General
Washington, D.C.

Represented United States in criminal appeals before the U.S. Navy-Marine Corps Court of Criminal Appeals,
U.S. Court of Appeals for the Armed Forces, and U.S. Supreme Court. Drafted over 200 briefs and made 18 oral
arguments. Drafted briefs in opposition to certiorari petitions. Collaborated with Solicitor General in drafting
brief and preparing for oral argument in court-martial appeal heard by U.S. Supreme Court. Served as member of
capital litigation team responsible for briefing and arguing death penalty appeals. Rated top appellate advocate in
the division. Awarded two decorations for outstanding meritorious service.

TRIAL AND REVIEW ATTORNEY November 1988-September 1991


Marine Corps Base
Camp Lejeune, North Carolina

Prosecuted courts-martial and represented clients in over 80 felony and misdemeanor jury and bench trials.
Supervised three attorneys and 10 staff in the processing of a daily docket of over 100 criminal cases.

EDUCATION

NEW YORK UNIVERSITY SCHOOL OF LAW J.D. 1988


Senior Casebook Editor, Moot Court Board
Recipient: Funded Law Education Scholarship
Moot Court Advocacy Award
American Jurisprudence Award: Creditors' Rights and Debtors' Protection
Albert Diaz Page 2
BOSTON UNIVERSITY M.S. Business Administration, 1993

WHARTON SCHOOL, UNIVERSITY OF PENNSYLVANIA B.S. Economics, 1983


Recipient: Four year NROTC Scholarship

ARTICLES, PRESENTATIONS & ACTIVITIES

“The Least Among Us,” Mecklenburg County Bar Newsletter, March 2005
“Professionalism,” Mecklenburg County Bar Newsletter, July 2003
Speaker, “Forum Selection—Has the Business Court Changed the Equation,” North Carolina Association
of Defense Attorneys, June 2007
Speaker, “An Introduction to Business Courts,” ABA Business Law Section, March 2007
Speaker, “Minorities in the Law,” Charlotte School of Law, February 2007
Speaker, “Business Court Perspectives,” American College of Trial Lawyers, February 2007
Speaker, “Increasing Diversity in the Legal Profession,” Mecklenburg County Bar, February 2007
Speaker, “Diversity Matters,” Mecklenburg County Bar, February 2007
Speaker, “All-Star Trial Advocacy, Mecklenburg County Bar, January 2007
Speaker, “Orientation for New Superior Court Judges, UNC-Chapel Hill School of Government, Dec. 2006
Speaker, “North Carolina Unfair and Deceptive Trade Practices Act,” Conference of North Carolina
Superior Court Judges, June 2006
Speaker, “Beyond the Basics of Civil Litigation, North Carolina Bar Association, May 2006
Speaker, “Nuts and Bolts of Practice in the Business Court,” Sole Practitioner/Small Firm Section,
Mecklenburg County Bar, May 2006
Speaker, “Business Court Update,” Conference of North Carolina Superior Court Judges, October 2005
Speaker, “Deposition Evidence,” Joint session, Conference of North Carolina Superior Court Judges and
Litigation Section, North Carolina Bar Association, June 2005
Speaker, “Update on Civil Practice Basics,” Mecklenburg County Bar, February 2005
Speaker, “Findings of Fact and Conclusions of Law,” Conference of North Carolina Superior Court
Judges, November 2004
Speaker, “South Carolina Oath Affirmation Program,” North Carolina Bar Association, November 2004
Co-Course Planner, “All-Star Trial of a Business Case,” North Carolina Bar Association, May 2004
Secretary, Justice Bobbitt Inn of Court, Charlotte, North Carolina, 2004-Present
Member, American College of Business Court Judges, 2005-Present
Member, State Judicial Council, 2001-2002
Vice-President, North Carolina Bar Association, June 2007-Present
Member, Litigation Section Council, North Carolina Bar Association, 2003-2007
Member, Conference of State Trial Judges, American Bar Association, 2001-Present
Member, Business and Commercial Courts Committee, ABA Conference of State Trial Judges, 2004-Present
Member, Minorities in the Profession Committee, North Carolina Bar Association, 1998-Present
Member, Hispanic-Latino Lawyers Committee, North Carolina Bar Association, 1998-Present
Member, Special Committee on Diversity in the Legal Profession, Mecklenburg County Bar, 2005-Present
Member, Board Nominating Committee, Mecklenburg County Bar, 2006-Present
Member, Hispanic National Bar Association, 2004-Present
Presiding Judge, Charlotte Mecklenburg Schools Truancy Court (Aug 2005-Present)
Presiding Judge, National High School Mock Trial Championships, May 2005
Presiding Judge, Mecklenburg County Drug Treatment Court, 2002-Present
Adjunct Faculty, Central Piedmont Community College, 2006-Present

Albert Diaz Page 3


BAR MEMBERSHIPS

NEW YORK (1989), DISTRICT OF COLUMBIA (1990) and NORTH CAROLINA (1995)

OTHER LEGAL EXPERIENCE

LT. COLONEL 1995-2006


U.S. Marine Corps Reserve (Ret.)

March 2005-October 2006: Reserve Appellate Judge, U.S. Navy-Marine Corps Court of Criminal Appeals,
Washington Navy Yard, Washington, D.C. Presided over oral arguments and prepared opinions resolving
appeals of service members convicted of criminal offenses at courts-martial.

May 2000-February 2005: Reserve Military Judge, U.S. Navy-Marine Corps Trial Judiciary, Piedmont
Judicial Circuit, Camp Lejeune, North Carolina. Served as presiding judge in courts-martial cases.

October 1995-April 2000: Reserve appellate defense counsel, Office of the Judge Advocate General,
Washington, D.C. Represented over 200 clients in criminal appeals before the military appellate courts.
Rated top reserve appellate advocate in the division. Received Reserve Navy Judge Advocate General’s
“Award of Excellence” for outstanding meritorious service.
Andrew M. Federhar

Director Andrew M. Federhar


Fennemore Craig
Phoenix Mr. Federhar practices in the Phoenix
(602) 916-5301 and Tucson offices of the firm and chairs
(602) 916-5972-fax the firm's commercial litigation practice
group. He represents clients in
Practice Areas connection with professional liability,
government contracts, health care
issues, insurance coverage, legislation
Administrative Law and Government Procurement
Commercial Litigation and general commercial litigation.
Condemnation
Mr. Federhar can be reached at:
Construction Law
Government Relations Phoenix: (602) 916-5301
Health Care and Bioscience Tucson: (520) 879-6802
Indian Law
Professional Liability
Real Estate and Real Estate Litigation Articles and Presentations
Litigation
Proposed Changes to the Rules of Civil
Procedure for Complex Civil Litigation,
Presenter, Arizona State Bar
Convention (2002)
Land Use Planning, Lecturer,
Conservation Foundation and Lincoln
Land Institute (1989)
Arizona Courtroom Evidence Manual,
Contributing Author (1985)
Professional and Community
Activities
Member, State Bar of Arizona
Member, Pima County Bar Association
Member, American Bar Association
Member, Judicial Performance Review
Committee
Fellow, American Bar Association
Chair, Arizona State Bar Legislative
Committee
Co-Chair, Men's Anti-Violence Network
Chairman, Supreme Court's Committee
on Complex Civil Litigation
State Delegate, Ninth Circuit Judicial
Conference
Past Co-Chairman, Citizen's Air Quality
Committee of Pima County
Past Chairman, State Board of
Transportation
Past Member, State Board of

{00057899;v1}
Transportation
Past Member, Arizona Board of Regents
Former Special Assistant of the
Chairman of the President's Nuclear
Safety Oversight Committee
Admissions
U.S. Supreme Court, 1983
Arizona, 1980
Education and Honors
Best Lawyers in America®, Commercial
Litigation, 2007
Chambers USA, Leading Lawyers for
Business
J.D., University of Arizona, 1980
B.A., in Political Science, with honors
and distinctions, University of Arizona,
1977

© 2003 Fennemore Craig

{00057899;v1}
Merrick L. Gross
Shareholder
One Southeast Third Avenue
25th Floor
Miami, FL 33131-1714

Direct: 305.982.5638
Fax: 305.374.5095

merrick.gross@akerman.com

Practice Areas
Commercial Litigation
Banking and Lending, Litigation, Class Actions, Construction, Bankruptcy and Creditors' Rights, e-Discovery

Industry Experience
Banking and Financial Institutions, Insurance

Recognition
AV rated by Martindale-Hubbell
President, Dade County Bar Association, 2006-2007
Chair, Florida Bar Business Law Section, 2007-2008
Florida Bar Business Law Section, Section Member of the Year Award, 2002-2003
Dade County Bar Association, Committee Chair Exceptional Service Award, 1999-2000, 2001-2002,
2003-2004, 2004-2005
American Bar Association Section of Litigation Outstanding Subcommittee Chair Award, 2004-2005
Listed in Florida Trend's Legal Elite, 2006, 2007
Florida Super Lawyer, 2006, 2007
Fellow, The Florida Bar Foundation
Fellow, The American Bar Foundation
Appointed by Chief Justice R. Fred Lewis to the Florida Supreme Court Task Force on Management of
Cases Involving Complex Litigation

Notable Client Work


Ellipsis v. The Color Works, Inc. 2006 WL 1207589 (W.D. Tenn. 2006) (Successfully obtained summary
judgment in favor of client resulting in dismissal with prejudice of all of plaintiff's claims in case where
$54 million in damages sought).
Ellipsis v. The Color Works, Inc., 428 F. Supp 2d (W.D. Tenn. 2006) (Successfully had plaintiff's expert
witnesses stricken with prejudice based upon failure of plaintiff's proposed expert testimony to comply
with Federal Rule of Evidence 702 and Daubert).
Ellipsis, Inc. v. The Color Works, Inc., 227 F.R.D. 496 (W.D. Tenn. 2005) (Successfully obtained order
from court that defendant was entitled to dispose attorney from opposing law firm, who was not
plaintiff's trial counsel, and whose deposition would not expose plaintiff's trial strategy.)
Rodriguez v. Amstar Insurance Company, 888 So 3d 760(Fla. 3d DCA 2004) (Successfully obtained
dismissal with prejudice of claims against insurance company client in class action suit asserting that
process of taking betterment deductions when processing claims was improper.)
In re United Container LLC, E.S. Bankest, LLC v. United Beverage Florida, LLC et. al., 284 B.R. 162
(Bkrtcy. S.D. Fla 2002) (successfully obtained remand of case from Bankruptcy Court to State Court, a
more favorable forum for client to present defenses).
Information Technology & Engineering Corp. v. Reno et al, 813 So 2d 1053 (Fla 4th DCA 2002)
CFI Sales and Marketing, Ltd. v. Florida Marlins, Baseball, Ltd, 2002 WL 428247 (Fla 3d DCA 2002)
Temple et. al. v. Gorman et. al., 201 F. Supp 2d 1238 (S.D. Fla. 2002) (Successfully obtained dismissal
with prejudice of claims against individual client in multi-party suit asserting federal and state securities
law violation claims arising from investments in a start-up dot.com entity.)
Warner v. Wireless Broadcasting Systems of America, Inc., Case No 96-2214-CIV-T-25A (M.D. Fla.
2000), aff'd, F. 3d (11th Cir. 2001) (obtained a favorable summary judgment for client in a breach of
contract/Florida Securities Investors Protection Act case which was upheld by the 11th Circuit Court of
Appeals resulting in an award of attorneys' fees to defendant client).
Molenda v. Hoechst Celanese Corporation, 60 F. Supp. 2d 1294 (S.D. Fla. 1999), aff'd, F. 3d (11th Cir.,
March 27, 2000)(obtained a favorable summary judgment and directed verdict for client in a breach of
contract/defamation/ Florida Whistleblower Act/ ADEA case which was upheld by the 11th Circuit Court
of Appeals, resulting in an award of attorney's fees to defendant client).
Carolyn Properties I v. Mitsui Trust & Banking, Co., Ltd., 136 F. 3d 140 (11th Cir.), cert.den'd, 525 U.S.
825 (1998).
Vans R Us, Inc. v. First Union National Bank of Florida, 597 So. 2d 929 (Fla. 3d DCA 1992).
Aberbach v. Wekiva Associates, Ltd., 735 F. Supp. 1032 (S.D. Fla. 1990).
T.P.M. International, Inc. v. Banco Industrial de Venezuela, C.A., 534 So. 2d 815 (Fla. 3d DCA 1988).
Benner v. Layne, 518 So. 2d 445 (Fla. 3d DCA 1988).

Published Work and Lectures


Business Courts: Are They Working and Why" CLE Program, ABA Section of Business Law Annual Spring
Meeting, Chairman, Co-Arthur of Program Materials, Moderator, April, 2006
"2005 Review of Recent Developments in Business and Corporate Litigation" CLE Program, ABA Section
of Business Law Annual Spring Meeting, Speaker, April 2006
"Will the Court Allow My Damages Expert to Testify: How to Survive a Daubert Challenge - A Live
Demonstration", CLE Program, ABA Annual Meeting, Chairman/Co-Author of Program Materials/
Moderator, August, 2005
Co-Author, Chapter of Model Jury Instructions entitled "Confusion of Source," Chapter Four, Business
Torts Litigation Model Jury Instructions, American Bar Association (4th Edition 2005)
"Is My Expert Evidence Admissible: How to Prepare for and Succeed at a Daubert Hearing --- A Live
Demonstration" CLE Program, ABA Section of Litigation Annual Meeting, Chairman/Co-Author of
Program Materials/Moderator, April 2005
"Business Courts: Are They Working and Why" CLE Program, ABA Section of Litigation Committee on
Corporate Counsel CLE Meeting, Chairman/Co-Author of Program Materials/Moderator, February 2005
Co-Author, Article entitled "Fifty State Survey of the Standards Governing the Admissibility of Expert
Scientific Evidence," Commercial & Business Litigation Committee Newsletter, American Bar Association
(August 2003); Committee on Trial Evidence Newsletter, American Bar Association (Spring 2004)
"Pushing the Expert Testimony Envelope: The Intricacies of a Daubert Hearing --- A Live
Demonstration" CLE Program, ABA Section of Litigation Annual Meeting, Chairman/Co-Author of
Program Materials/Moderator, April 2003
"Advice from the Experts: Successful Strategies for Litigating Commercial Cases in Federal Courts" CLE
Program, The Florida Bar, Chairman/Co-Moderator, September 2002(Miami); October 2003(Orlando)
Regional Coordinating Editor, "ABA Survey of State Class Action Law" (2002-2007)
"Why Jury Research Works: From Mock Trial to Mach Trial" CLE Program, American Bar Association
Corporate Committee Annual Meeting, Speaker and Co-Chair, February 2002
"Creditors' Rights in Bankruptcy in Florida" Seminar, Sterling Education Services, LLC, Speaker/Author
on "Priorities among Creditors" and "Non Bankruptcy Rights of Secured Creditors Upon Default" topics,
February, 2002
Author: Case Note entitled "Florida Constitution Protects Homestead Property From Creditors Even if
Purchased With Non-Exempt Funds With Intent to Defraud Creditors," Business Torts Newsletter,
American Bar Association (January 2002)
"Business Litigation, Unlike Any Other Litigation" Seminar, The Florida Bar, Speaker/Author and Chair,
November 1997
Lectures on various electronic discovery issues and issues involving specialized business courts
Assisted in revising Local Rules of the United States District Court for the Southern District of Florida to
reflect and take into account new electronic discovery amendments to Federal Rules of Civil Procedure

Bar Admissions
1987, Florida

Court Admissions
U.S. Court of Appeals, Eleventh Circuit
U.S. District Court, Middle District of Florida
U.S. District Court, Southern District of Florida

Professional Memberships and Activities


Federal and American Bar Associations (Business Law Section, Business and Corporate Litigation
Committee, Business Courts Subcommittee, Chair 2005-present; Vice-Chair 2004-2005; and Litigation
Section, Commercial and Business Litigation Committee; Appellate Litigation Committee; Committee on
Class Actions and Derivative Suits; Committee on Corporate Counsel, Business Torts Committee, Books
Subcommittee, Co-Chairman 2005-2007; 11th Circuit Subcommittee, Chairman 1999-2002,
Programming Subcommittee, Co-Chairman 2001-2006; 2008 ABA Section of Litigation Committee on
Corporate Counsel CLE Meeting, Co-Chairperson 2007-2008)
The Florida Bar (Trial Lawyers and Business Law Section, Chair, 2007-2008, Chair-Elect, 2006-2007,
Treasurer/Secretary, 2005-2006; Member, Executive Council, 1997-present; Chairman, Business
Litigation Committee, 1998-1999; Co-Chairman, Business Courts Committee, 1999-2004; Chairman,
Legislative Committee, 2004-2005; Co-Chairman, Section Annual Retreat Committee, 2002-2005; Co-
Chairman, MJP Committee 2003-2005) The Florida Bar Standing Committee on Judicial Independence
(2007-present)
Dade County Bar Association (President, 2006-2007; President-Elect, 2005-2006; Vice President, 2004-
2005, Director, 2001-2004; Civil Litigation Committee, Chairman, 2000-2002; Banking and Corporate
Litigation Committee, Chairman, 1998-2000, 2002-2003; Federal Courts Committee, Chairman, 2003-
2005)
Ad Hoc Rules Committee of the United States District Court for the Southern District of Florida, 2003-
2007
The American Bar Foundation
Eleventh Circuit Historical Society
The Florida Bar Foundation

Prior Professional Experience


Stroock & Stroock & Lavan - 1990-1994
Education
1987: J.D., Boston University School of Law
1984: B.A., Emory University, summa cum laude
BEN F. TENNILLE

844 Glen Echo Trail 211 North Greene Street


Winston-Salem, NC 27106 Greensboro, NC 27401
Home Telephone [336] 721-2519 Office Telephone: [336] 334-5252

Email: btennille@ncbusinesscourt.net

PRESENT POS1TION

Chief Special Superior Court Judge for Complex Business Cases


State of North Carolina

In January of 1996 Judge Tennille was sworn in as the first Special Superior Court Judge for
Complex Business Cases in North Carolina and charged with creating the first state-wide
Business Court in the nation. He was the only judge until the fall of 2005 when, on
recommendation of the Chief Justice’s Commission on the Future of the Business Court, the
court’s jurisdiction was expanded and two new judges were added. At that time Judge
Tennille was appointed Chief Judge of the Business Court. The Business Court is similar to
a Federal District Court in that its judges try cases and write opinions designed to create a
body of case law involving issues of importance to business and industry in North Carolina.
In establishing the court Judge Tennille designed a model paperless court, which employs a
free electronic filing system using the Internet. It was one of the first successful efiling
systems in the country. The Court was one of the first to maintain a website where all the
opinions were accessible as soon as they were filed and all pleadings were accessible on the
website.

Judge Tennille currently maintains his chambers and his courtroom in the new Elon
University School of Law, the only trial court in the country to be housed in a law school.

ABA

Judge Tennille served as the only judge on an American Bar Association Corporate
Responsibility Task Force, a panel charged with examining the framework of laws and
regulations and ethical principles governing the roles of lawyers, executive officers and
directors. The goal of this Task Force on Corporate Responsibility was to design a system of
checks and balances to enhance public trust in corporate integrity and responsibility
following the Enron and Worldcom failures. The panel held hearings during Fall 2002 and
submitted a final report to the ABA in April 2003.

Judge Tennille serves as Judicial Division Liaison to the Business Law Section of the ABA.

He is also Co-Chair of the Judges Initiative Committee of the Business Law Section and
serves on the Business Courts Committee and the Business Law Section Institutes and
Seminars Board.

Judge Tennille serves as Chair of the Business and Commercial Courts Committee of the
National Conference of State Trial Judges, a newly formed committee which will provide a
forum for the exchange of information, best practices and technology developments among
ABA-member judges who are presently sitting on, planning to organize, or simply interested
in the concept of, courts or divisions of courts dedicated to the trial of business and
commercial cases. This committee will also coordinate with other ABA committees such as
the committee on Business Courts of the Business Law Section and the Judges Initiative
Committee.
North Carolina Bar Association

Judge Tennille is currently serving as Vice President of the North Carolina Bar Association.
He has served on the Technology Advisory Committee, the Dispute Resolution Council and
been active in the General Counsel Section. He is a certified mediator.

American College of Business Court Judges

Judge Tennille helped found the American College of Business Court Judges and served as
its president from 2005 to 2007.

Advisory Boards

Judge Tennille serves on the AEI-Brookings Judicial Education Advisory Board, the ALI-
ABA Advisory Board on Business Law and the American Scientific and Technological
Adjudication Resource Center Planning Committee.
Judge Tennille is a Master of the Joseph Branch Inn of the American Inns of Court.

Previous Experience

1971-1985 Associate and Partner, Smith Moore Smith Schell & Hunter
(now Smith Moore LLP), Greensboro, N.C.

1985-1993 Associate General Counsel, Assistant Secretary


Burlington Industries, Inc., Greensboro, N.C.

1993-1995 Division Manager, Human Resources and Communications


Burlington Industries, Inc., Denim Division

2001-2003 Adjunct Professor Wake Forest University School of Law

Educational Background

1994 University of North Carolina, Kenan-Flagler Business School


Executive Education/Leadership Development Program

1994 University of Michigan School of Business Administration


Human Resources Executive Program

1971 University of North Carolina School of Law (J.D. with Honors)


Member, North Carolina Law Review, Order of the Coif

1967 University of North Carolina (B. A. Political Science)

1964 Phillips Exeter Academy

PERSONAL BACKGROUND

Judge Tennille was born in Winston-Salem, North Carolina where he currently resides with his
wife Marty. They share six children and four grandchildren.
He received an Honorable Discharge from the United States Marine Corps Reserve in 1975.
Copyright 2004 by the American Bar Association. Reproduced from The Business
Lawyer, Vol. 60, No. 1 (Nov. 2004) with permission. All rights reserved. This
information or any portion thereof may not be copied or disseminated in any form
or by any means or stored in an electronic database or retrieval system without the
express written consent of the American Bar Association.

A History of the Creation and Jurisdiction of


Business Courts in the Last Decade

By Mitchell L. Bach and Lee Applebaum*

TABLE OF CONTENTS
I. INTRODUCTION .................................................................. 151
II. SUPREME COURT OF NEW YORK COMMERCIAL DIVISION ...... 152
A. Introduction .................................................................... 152
B. The Commercial Division’s Evolution .................................... 153
C. Commercial Division Jurisdiction ......................................... 156
D. The Commercial Division’s Effect and Influence ...................... 158

* Mitchell L. Bach is a Member of Eckert Seamans Cherin & Mellott, LLC, and a commercial litigator
in its Philadelphia office. He is Chair of the Committee on Business and Corporate Litigation of the
ABA Section of Business Law and is Chair of the Business Courts Subcommittee. Mr. Bach was among
those who worked towards the creation of Philadelphia’s Commerce Case Management Program.
Lee Applebaum is a Partner with Fineman, Krekstein & Harris, P.C. in Philadelphia. He is Vice
Chair of the ABA Section of Business Law’s Subcommittee on Business Courts, and the incoming Chair
of the Business Litigation Committee of the Philadelphia Bar Association’s Business Law Section.
The bulk of this Article was originally presented on November 7, 2003 at the Symposium “Taking
Care of Business: Business & Technology Courts in the Twenty-First Century,” sponsored by the
University of Maryland School of Law and the Business and Corporate Litigation Committee of the
ABA Section of Business Law.
The authors wish to give special thanks to Diane Akers, Esquire, who drafted the section on Michi-
gan, and to thank the following people for their time and assistance in providing information, insight,
and/or editorial comments that went into our preparing this Article, though any flaws herein solely
belong to us: The Honorable Brent Adams, R. Franklin Balotti, Esquire, The Honorable Elihu Berle,
Howard J. Berlin, Esquire, The Honorable Mark I. Bernstein, Edward G. Biester III, Esquire, Beth I. Z.
Boland, Esquire, Professor Richard Booth, George Burns, Esquire, Jane F. Castner, Esquire, The Hon-
orable William B. Chandler III, Henry Chatham, Esquire, Professor Kathleen Coles, Peter L. Costas,
Esquire, Ellen Davis, Tim Dibble of AEQUITAS, Inc., The Honorable Timothy C. Evans, Thomas
Feinberg, Esquire, The Honorable Peter Flynn, Raymond Fortin, Esquire, John P. Fowler, Esquire,
Allen C. Goolsby III, Esquire, Gary Grimmer, Esquire, Robert L. Haig, Esquire, Professor Lawrence
Hamermesh, Sarah Herlihy, Esquire, The Honorable John W. Herron, Michael J. Higer, Esquire, Julie
Holmes, Stephen Hope, Esquire, Jack S. Kennedy, Esquire, G. Marcus Knight, Esquire, Thomas F.
Kummer, Esquire, Alan Lefkowitz, Esquire, Warren Lupel, Esquire, The Honorable William D. Mad-
dux, Gael Mahony, Esquire, Harry D. Mercer, Esquire, Lawrence Okinaga, Esquire, Eric Orlinsky,
Esquire, Michelle Perone, Esquire, The Honorable Steven I. Platt, The Honorable Gene T. Porter, Jason
B. Schaeffer, Esquire, David G. Shuford, Esquire, The Honorable Albert W. Sheppard, The Honorable
Michael A. Silverstein, The Honorable Thomas Smith, The Honorable Ben C. Tennille, The Honorable
Allan Van Gestel, and Ms. Bonnie Venturo. We also wish to thank Richard Kraemer for his research
assistance, and Lisa Raudenbush, Ann Delaney, Elaine Null-Corrento, Tiffany S. Hubbard, and S.
Ahsiyah Applebaum for their clerical assistance.

147
148 The Business Lawyer; Vol. 60, November 2004

III. CIRCUIT COURT OF COOK COUNTY COMMERCIAL


CALENDAR .......................................................................... 160
A. History of the Commercial Calendar ..................................... 160
B. Case Loads in the Commercial Calendar ................................ 162
C. Commercial Calendar Jurisdiction ........................................ 164
D. Effects of the Commercial Calendar ...................................... 165
IV. NORTH CAROLINA’S BUSINESS COURT .................................. 166
A. Creation of North Carolina’s Business Court ........................... 166
B. Case Selection in North Carolina’s Business Court ................... 167
C. Other Developments in North Carolina’s Business Court ........... 168
V. THE NEW JERSEY SUPERIOR COURT LAW DIVISION’S
COMPLEX COMMERCIAL CASE MANAGEMENT ...................... 170
A. History of Commercial Case Management .............................. 171
B. New Jersey’s “Best Practices” ................................................ 172
VI. PHILADELPHIA’S COMMERCE CASE MANAGEMENT
PROGRAM ........................................................................... 176
A. History of the Commerce Case Management Program .............. 176
B. Commerce Case Management Program Jurisdiction ................. 178
VII. BUSINESS LITIGATION SESSION IN THE SUPERIOR COURT
OF MASSACHUSETTS ........................................................... 180
A. Cases Heard in the Business Litigation Session ........................ 181
B. Response to the Business Litigation Session ............................ 182
VIII. NEVADA BUSINESS COURTS IN THE SECOND AND EIGHTH
JUDICIAL DISTRICT COURTS ................................................. 184
A. Goals of Nevada’s Business Courts ........................................ 184
B. Creation of Nevada’s Business Courts .................................... 184
C. Cases in Nevada’s Business Courts ........................................ 185
IX. RHODE ISLAND SUPERIOR COURT BUSINESS CALENDAR ........ 188
X. MARYLAND’S CIRCUIT COURT BUSINESS AND TECHNOLOGY
CASE MANAGEMENT PROGRAM ............................................ 190
A. The Creation of Maryland’s Business and Technology Case
Management Program ........................................................ 190
B. Cases Heard in the Business and Technology Case Management
Program .......................................................................... 191
XI. BUSINESS COURT SUBDIVISION OF THE ORANGE COUNTY,
FLORIDA CIRCUIT COURT .................................................... 194
XII. OKLAHOMA BUSINESS COURT .............................................. 195
XIII. MICHIGAN BUSINESS AND TECHNOLOGY COURTS ................ 196
A. Michigan’s Cyber Court ...................................................... 197
B. Cyber Court Jurisdiction .................................................... 197
C. Michigan’s Effort at Creating a Business Court ........................ 198
XIV. COLORADO AND GEORGIA .................................................. 199
A. The Colorado Governor’s Task Force on Civil Justice Reform ..... 200
B. The Georgia Feasibility Study .............................................. 201
The Creation and Jurisdiction of Business Courts in the Last Decade 149

XV. SOME INTERNATIONAL COURTS ........................................... 202


XVI. COMPLEX LITIGATION PROGRAMS ........................................ 204
A. California’s Complex Civil Litigation Pilot Program .................. 206
B. Connecticut’s Complex Litigation Docket ............................... 211
C. Arizona’s Complex Litigation Pilot Program ............................ 213
D. Pittsburgh’s Complex Case Assignment .................................. 215
XVII. DELAWARE COURT OF CHANCERY AND SUPERIOR COURT ..... 216
A. Court History ................................................................... 216
B. Summary Proceedings in the Superior Court .......................... 218
C. Creation of Technology Court Jurisdiction Within the
Chancery Court ................................................................ 220
XVIII. JURISDICTIONAL COMPARISONS ........................................... 223
A. Broad Jurisdiction Business Courts ....................................... 223
B. Complex Jurisdiction Business Courts ................................... 225
C. Other Jurisdictional Management ......................................... 226
D. Jurisdictional Objectives ..................................................... 226
XIX. CONCLUSION ..................................................................... 228

APPENDIX A
WRITTEN PARAMETERS OF BUSINESS COURT JURISDICTION
Colorado .................................................................................... 229
Delaware .................................................................................... 229
Florida ....................................................................................... 231
Illinois ....................................................................................... 238
Maryland .................................................................................... 240
Massachusetts .............................................................................. 241
Michigan .................................................................................... 243
Nevada ...................................................................................... 245
New York ................................................................................... 248
New York County ..................................................................... 248
Albany County ......................................................................... 250
Erie County ............................................................................. 251
Kings County ........................................................................... 254
Monroe County ........................................................................ 256
Nassau County ......................................................................... 258
Suffolk County ......................................................................... 260
Westchester County .................................................................. 261
North Carolina ............................................................................ 264
Oklahoma .................................................................................. 268
Pennsylvania ............................................................................... 269
Rhode Island ............................................................................... 271
150 The Business Lawyer; Vol. 60, November 2004

APPENDIX B
EXPERIENCES IN SOME OTHER JURISDICTIONS WITH EFFORTS TO
ESTABLISH BUSINESS COURTS
Hawaii ....................................................................................... 273
Maine ........................................................................................ 273
Minnesota .................................................................................. 273
Mississippi .................................................................................. 274
Ohio ......................................................................................... 274
Virginia ...................................................................................... 274
Wisconsin .................................................................................. 275
The Creation and Jurisdiction of Business Courts in the Last Decade 151

What follows is a history and description of business courts1 established or


contemplated throughout the United States.2 We have included some statistical
information,3 with our chief focus being on the various courts’ respective juris-
dictional parameters.4 We do not provide the detailed narrative necessary to do
full justice to the individual and group efforts and dynamics resulting in the
establishment of the business courts discussed herein. Though the nature of that
effort and dynamic bears its own unique mark in each jurisdiction, it was only
through the common trait of determination that the establishment of any business
court has become possible.

I. INTRODUCTION
The creation of specialized business courts in the United States has expanded
greatly in the last ten years. Business courts, or more accurately business programs
or divisions within existing trial level courts, have been established and are op-
erating in New York, Chicago, North Carolina, New Jersey, Philadelphia, Penn-
sylvania, Reno and Las Vegas, Nevada, Massachusetts, Rhode Island, Maryland,
and Orlando, Florida. In May 2004, Oklahoma’s Legislature created a state-wide
business court. In New York, Chicago, Philadelphia, Massachusetts, and New
Jersey, the original business programs have been expanded by adding additional
judges and/or by expanding into additional counties.
One new aspect of the “traditional” business court is the creation of specialized
courts that include technology disputes as part of their express jurisdiction.
Through legislative effort and court rule, effective January 1, 2003, Maryland
established a Business and Technology Case Management Program.5 In May 2003,

1. The phrase “business courts” is used as a generic term for the variety of courts and programs
that have been created which are not separate courts at all, but divisions or programs within an existing
court.
2. There are specialized business and commercial courts in other nations. We include a very brief
description of commercial courts in England and Ireland, as well as a “Commercial List” in the Superior
Court of Justice in Toronto, Ontario, Canada. See infra Section XV. We also note England’s specialized
Technology and Construction Court. See infra note 433. The express reasons for creating or refining
these specialized courts are similar to purposes behind the creation of American business courts.
3. The authors do not purport to have obtained or analyzed all available statistics; nor do we intend
to portray this piece as encompassing a comprehensive statistical review of business courts. That being
said, we believe that the information is valuable with regard to the numbers and types of cases being
heard and resolved in business courts, with the caveat that these numbers may have different meanings
depending on the jurisdiction of each business court, the practical meaning of the term “case,” and
each jurisdiction’s goals. By way of a single example, as will be discussed below, North Carolina has
established a respected and valued business court that by its nature may not involve a high volume
of cases in comparison to New York, Chicago, or Philadelphia.
4. This piece will not focus on procedural rules, technology used to enhance business court pro-
grams or the extensive application of Alternative Dispute Resolution (“ADR”). There is no question
that integrating ADR methods as adjuncts to the judges’ work in business court litigation is an essential
part of many business courts. Integrating computer and other technology into business court practice
also appears to be approaching a new standard, rather than a novelty. Although these elements are
important to a successful business court, our research is most clear that it is the judge that is the
single most important factor in creating a court that is successful in balancing the qualities of fairness,
attention, care, and expeditiousness that make for an exemplary court.
5. MD. R. 16-205.
152 The Business Lawyer; Vol. 60, November 2004

Delaware expanded the Court of Chancery’s jurisdiction to include technology


disputes, and to permit the mediation of other kinds of business disputes.6 Michi-
gan has created a “Cyber Court,” which, however, remains unfunded.7
California, Connecticut, and more recently the Maricopa County Superior
Court in Phoenix, Arizona have created specialized courts for complex litigation
that would include some business disputes within a broader jurisdiction of com-
plex matters. Other states are in various stages of moving toward or away from
business courts,8 with Colorado and Georgia having conducted extensive studies
into the merits and potential parameters of creating a business court.9
A brief history and description of existing business courts follows, along with
an overview of complex litigation programs. Generally, we discuss the business
courts in the chronological order of their creation, followed by a summary of
complex litigation programs, and culminating with a discussion of Delaware’s
Court of Chancery and Superior Court. The final section of the Article compares
the jurisdictional parameters of the business courts.

II. SUPREME COURT OF NEW YORK COMMERCIAL DIVISION


A. INTRODUCTION
In 1993, a pilot commercial court program was initiated in New York County’s
(Manhattan) Supreme Court.10 This effort is a critical point of origin for the decade
long trend in creating business and commercial courts.11 The pilot program arose
at a time of failing confidence in the state trial courts’ ability to address business
litigation. Thus, given a choice, it was “unlikely that a business litigant . . . would
have elected to litigate in the state courts in New York. Most such litigants pre-
ferred the federal courts, the courts of other states like Delaware, and private
[alternative dispute resolution (ADR)].”12
The pilot program assigned business and commercial cases to a single judge
for all aspects of the case. This was aimed at alleviating back log, as well as
achieving other goals, which included expediting cases, reducing expense, cre-

6. DEL. CODE. ANN. tit. 10, § 346 (1999).


7. MICH. COMP. LAWS ANN. § 600.8001 (West Supp. 2004). North Carolina may create a defined
technology dispute jurisdiction as well. See supra note 184.
8. See Appendix B for a listing of the experience in some states, although the list is not exhaustive.
9. See infra Section XIV.
10. NYS Unified Court System’s Comprehensive Civil Justice Program at III.1 (Mar. 24, 1999) [here-
inafter NYS Unified Court System], available at http://www6.law.com/ny/links/civiljustice.html (last vis-
ited Nov. 15, 2004). This early effort at a business court program is often referred to as the “pilot
parts.”
11. Paula Hannaford et al., Civil Action: A Briefing on Civil Justice Reform Initiatives: Focus on Business
and Complex Litigation Courts, 1 NAT’L CENTER FOR ST. CTS. 1, 2–3 (Aug. 2000) [hereinafter Focus on
Business and Complex Courts]. This article was the result of a “Justice Roundtable” sponsored by the
National Center for State Courts on November 16, 1999, with representatives from Delaware (Chan-
cellor William B. Chandler III), New York ( Justice Stephen G. Crane), and California ( Justice Richard
D. Aldrich).
12. Legal Opinion Letter from Robert L. Haig, Esquire, to Washington Legal Foundation ( Jan. 9,
1998) [hereinafter Haig Opinion Letter]. See infra notes 72–73 and accompanying text on Mr. Haig’s
role in establishing business courts.
The Creation and Jurisdiction of Business Courts in the Last Decade 153

ating consistency in case management, and creating judicial expertise in business


and commercial matters.13 In addition to developing judicial expertise, this format
“promoted early and active judicial involvement and facilitated linkage to alter-
native dispute resolution programs and services.”14
New York’s Commercial Division, the heir to this pilot program, would reflect
these goals as well. As stated by New York’s Council on Judicial Administration
in 1997: “[t]he overall objective of the commercial division is to concentrate
expertise in commercial litigation, so that business disputes can be resolved better
and more efficiently.”15 New York County’s current Commercial Division operating
statement reiterates these same goals:
Absent vigorous case management, these cases tend to become protracted
and expensive, and, indeed, to become a drag upon the court’s inventory of
non-commercial matters. By concentrating most of the commercial cases filed
in New York County in the [Commercial] Division, before Justices familiar
with commercial jurisprudence and litigation and who are charged with the
task of active case management, court administrators hope that delay and
expense can be reduced for all parties in commercial cases, and derivatively
for litigants in non-commercial cases as well.16

B. THE COMMERCIAL DIVISION’S EVOLUTION


The pilot parts17 proffered signs of immediate success. A 35 percent increase
in the disposition of cases between 1992 and 1993 was attributed to the creation
of four specialized “commercial parts” in New York County.18 The efficiencies
attributed to judicial specialization permitted three specialized business judges to
handle the work of more than four generalist judges using the same resources.19
In November 1995, this experiment led to the creation, through the office of
Chief Judge Judith S. Kaye, of the Commercial Division of the Supreme Court of
New York.20 The Commercial Division was initially established in New York and

13. Focus on Business and Complex Courts, supra note 11, at 3.


14. NYS Unified Court System, supra note 10, at III.1.
15. The Council on Judicial Administration, Report on the Chief Judge’s Court Restructuring Plan, 52
RECORD 929, 948 (1997) [hereinafter Restructuring Plan].
16. The Commercial Division of the State of New York, Commercial Division Operating Statement:
Part I: Explanation of Filing and Other Procedures, at http://www.nycourts.gov/comdiv/CD%20Operating
%20Statement%202002%20-%20Part%20I.htm (last visited Oct. 30, 2004).
17. See NYS Unified Court System, supra note 10.
18. ABA Ad Hoc Committee on Business Courts, Business Courts: Towards a More Efficient Judiciary,
52 BUS. LAW. 947, 957 (1997).
19. Id. Originally, there were four judges, but this number was later reduced to three.
20. NYS Unified Court System, supra note 10, at III.1. In January 1995, a task force of the Com-
mercial and Federal Litigation Section of the New York State Bar Association had recommended the
commercial pilot parts expansion into a commercial division of the Supreme Court. Chief Judge Kaye
then created the Commercial Courts Task Force, led by the Honorable E. Leo Milonas and Robert L.
Haig, Esquire to study that report. The Task Force went on to recommend the commercial division’s
creation. The Commercial Division of the State of New York, A Brief History of the Commercial Division
( Jan. 2001), at http://www.nycourts.gov/comdiv/Brief_History_of_CD.htm. Robert L. Haig, Esquire,
among the handful of preeminent figures in the modern effort to establish business courts, described
154 The Business Lawyer; Vol. 60, November 2004

Monroe Counties.21 Consistent with the pilot program’s creation, the new Com-
mercial Division’s goals included the intention to “expedite the processing of cases
and develop judicial expertise in doing so, and to return the New York courts to
a leadership role in adjudicating major commercial disputes.”22
Success in New York and Monroe Counties “led the bar and business com-
munity to call for Commercial Division expansion to other counties.”23 The Com-
mercial Division’s success had “helped to stem the flight of commercial litigants
from New York’s courts, and to maintain New York’s status as the premier state
for the conduct of business.”24 In December 1998, Chief Judge Kaye announced
the expansion of the Commercial Division to Nassau, Erie, and Westchester Coun-
ties.25 In 2002, the Commercial Division expanded to Albany, Suffolk, and Kings
Counties.26
By 1998, the New York County Commercial Division’s average disposition rate
in contract cases was 552 days, compared to an average of 648 days for contract
disputes in 1992.27 By the end of 2000, that disposition time had fallen to 412
days, a 36 percent improvement from the pre-pilot days.28 By 2002, the average
time for disposition in contract cases brought within the Commercial Division
was down to 364 days, a 44 percent decrease from ten years earlier.29
Although each Commercial Division judge has more than the approximately
300 cases on a comparable federal judge’s docket, cases reportedly do not get
caught in the mire as the judges “make it a priority to decide motions and other
issues quickly and efficiently.”30 Currently, seven justices sit in the Commercial

Chief Judge Kaye as the only truly indispensable person in creating the Commercial Division. The
Commercial Division of the State of New York, Commercial Division Law Report ( Jan. 2000), at http://
www.nycourts.gov/comdiv/law_report_-_january_2000.htm. In light of New York’s influence on cre-
ating business courts nationally, her efforts and decisions lay behind more than the creation of New
York’s Commercial Division.
21. NYS Unified Court System, supra note 10, at III.1.
22. Id.
23. Id.
24. Restructuring Plan, supra note 15, at 948.
25. State of New York, Twenty-First Annual Report of the Chief Administrator of the Courts for Calendar
Year 1998, at 40 (Dec. 1998) [hereinafter 1998 New York Report].
26. The Commercial Division of the State of New York, A Brief History of the Commercial Division,
at http://www.nycourts.gov/comdiv/Brief_History_of_CD.htm (last visited Sept. 12, 2004).
27. NYS Unified Court System, supra note 10, at III.1. Monroe County showed a similarly high
degree of judicial involvement and success in resolving cases. Id.
A comparison from 1992 through November 1996 in New York County showed that in the Com-
mercial Division’s first year, the average disposition time improved by 29 percent; the number of cases
settling before trial increased 85 percent; the total number of pending cases was reduced by 26 percent;
the number of dispositions a year increased by 6 percent; and a court annexed ADR program “resulted
in a 43 percent settlement rate.” State of New York, 1997–98 Executive Budget: Appendix I, Part III,
Appropriations Requested by the Judiciary and Legislature, The Judiciary, Judiciary 1997–98 Budget
Request, Executive Summary at 19 (on file with The Business Lawyer, University of Maryland School
of Law).
28. Sharon M. Porcellio, Innovation, Successes for Litigation, N.Y. L.J., Jan. 22, 2001, at 3.
29. Letter from Robert L. Haig, Esquire, to Mitchell L. Bach, Esquire ( July 3, 2003) [hereinafter
Haig Letter].
30. Tamara Loomis, Commercial Division: High-Profile Case Casts Spotlight on Well-Regarded Court,
N.Y. L.J., June 20, 2002, at 5.
The Creation and Jurisdiction of Business Courts in the Last Decade 155

Division in New York County,31 two in Nassau County,32 two in Kings County,33
and one justice each in Monroe,34 Erie,35 Suffolk,36 Albany,37 and Westchester38
Counties.
The Commercial Division’s design is for “hands-on” judicial involvement, oc-
curring early in the case and continuing through to disposition.39 This includes
the ability to refer cases to the Commercial Division’s own ADR program.40 The
New York County Commercial Division established an ADR process in early
1996.41 This program includes more than 250 volunteer neutrals who handle
mediation or other forms of ADR that the parties might seek.42 Through the use
of its ADR process in 1998, close to 60 percent of the Commercial Division’s cases
have settled at or near their commencement.43 The number was similar two years
later.44 In 2002, over 60 percent of cases referred to the Commercial Division’s
mediation program in New York County settled.45 In 1998, 87 percent of cases
filed in New York County’s Commercial Division were disposed of prior to action
being taken to put the cases on the court’s trial calendar, as compared to 75
percent for the rest of the court.46 Commercial Division ADR has expanded to
other counties as well.47

31. The Commercial Division of the State of New York, Justices of the Commercial Division, at http://
www.nycourts.gov/comdiv/cd%20justices.htm (last visited Sept.12, 2004). There are six full time jus-
tices, and one additional justice has a part time role as a judicial hearing officer. Michael Bobelian,
Commercial Part Experiments With Category, Caseload, N.Y. L.J., Apr. 6, 2004, at 4.
32. The Commercial Division of the State of New York, Justices of the Commercial Division, at http://
www.nycourts.gov/comdiv/nassaujustices.htm (last visited Sept. 12, 2004). Kevin Schlosser, Commer-
cial Division Judges Help Shape Procedure and Law, N.Y. L.J., Sept. 23, 2003, at 16.
33. The Commercial Division of the State of New York, Justices of the Commercial Division, at http://
www.nycourts.gov/comdiv/Kings_Justices.htm (last visited Sept. 12, 2004).
34. The Commercial Division of the State of New York, Justices of the Commercial Division, at http://
www.nycourts.gov/comdiv/biography_of_justice_stander.htm (last visited Sept. 12, 2004).
35. The Commercial Division of the State of New York, Justices of the Commercial Division, at http://
www.nycourts.gov/comdiv/Erie_County.htm (last visited Sept. 12, 2004).
36. The Commercial Division of the State of New York, Justices of the Commercial Division, at http://
www.nycourts.gov/comdiv/Suffolk_County.htm (last visited Sept. 12, 2004). The Suffolk Commercial
Division has attempted to adopt procedures consistent with the other Long Island Commercial Division
in Nassau County. Schlosser, supra note 32, at 16.
37. The Commercial Division of the State of New York, Justices of the Commercial Division, at http://
www.nycourts.gov/comdiv/Albany_County.htm (last visited Sept. 12, 2004).
38. The Commercial Division of the State of New York, Justices of the Commercial Division, at http://
www.nycourts.gov/comdiv/WestChester_presiding_judge.htm (last visited Sept. 12, 2004).
39. NYS Unified Court System, supra note 10, at III.1.
40. Id.
41. The Commercial Division of the State of New York, A Brief History of the Commercial Division,
at http://www.nycourts.gov/comdiv/Brief_History_of_CD.htm (last visited Sept. 12, 2004).
42. Id. A link to the roster of neutrals is available at http://www.courts.state.ny.us/comdiv/
alternative_dispute_resolution_program.htm (last visited Sept. 12, 2004).
43. 1998 NEW YORK REPORT, supra note 25, at 40. A March 1997 survey showed a high level of
satisfaction among the neutrals and attorneys involved in the Commercial Division’s ADR process.
Robert C. Meade, Jr., Outside Counsel, Commercial Division ADR: A Survey of Participants, N.Y. L.J., Oct.
3, 1997, at 1.
44. Porcellio, supra note 28, at 3.
45. Haig Letter, supra note 29.
46. NYS Unified Court System, supra note 10, at III.1.
47. See, e.g., The Honorable Joseph G. Makowski, Mediation Training for Commercial Division Com-
pleted, 41 BAR ASS’N OF ERIE COUNTY BULL. 14 ( July–Aug. 2001) (twenty-six “skilled and experienced
156 The Business Lawyer; Vol. 60, November 2004

C. COMMERCIAL DIVISION JURISDICTION


Part I of New York County’s Commercial Division Operating Statement poses
the question: “What is a Commercial Case?” The answer: “[t]he focus of the Di-
vision is the complex commercial matter. Because of the complexity of the issues
and the sums at stake, such cases often involve significant discovery and generate
many motions.”48 As will be discussed in detail below, written guidelines exist
which set out the case types included in the Commercial Division’s jurisdiction;
however, the Commercial Division’s history includes jurisdictional refinements.
Most recently, this has included a three-month experiment suspending the mon-
etary damage minimum requirement and the guidelines providing judicial power
to transfer and preliminarily review cases.49 The study of this three-month pilot
project’s results will help the court refine its guidelines, including the threshold,
and weigh the effect of an additional full-time Commercial Division Judge.50 This
Article will discuss the guidelines as they were in effect on February 29, 2004
and again on June 1, 2004.
There are specific types of cases presumptively included within New York
County’s Commercial Division. In cases seeking monetary damages, however,
there are jurisdictional amounts which first must be met. The New York County
plaintiff must generally be seeking a minimum of $125,000 to bring a case in the
Commercial Division.51 Other Counties in New York State typically have lower

commercial practitioners” received twenty-five hours of mediation training to serve in matters assigned
to Commercial Division) (on file with The Business Lawyer, University of Maryland School of Law).
48. The Commercial Division of the State of New York, Commercial Division Operating Statement—
Part I, Explanation of Filing and Other Procedures ( June 2001), at http://www.courts.state.ny.us/comdiv/
CD%20Operating%20Statement%202002%20-%20Part%20I.htm.
49. See John F. Werner, Guidelines for the Assignment of Cases: Court Note (Feb. 23, 2004); John F.
Werner, Guidelines for the Assignment of Cases: Court Note (May 25, 2004), both available at http://
www.nycourts.gov/comdiv/Guidellines_for_Assignment_of_CasesNYC.htm. This experimental pro-
gram occurred from March 1, 2004 through May 28, 2004. The February 23, 2004 Court Note states:
Effective March 1, 2004, and until further notice, the Commercial Division of Supreme Court,
Civil Branch, New York County will suspend operation of the transfer and preliminary review
mechanisms set out in the Guidelines for Assignment of Cases to the Commercial Division. Cases
that have been designated “Commercial” on the Request for Judicial Intervention will not be
assigned to a General Part after preliminary review nor transferred out of the Division and reas-
signed for failure to meet a monetary threshold or because of the nature of the subjects at issue
(except for matters that are manifestly not commercial in character, such as a dispute over the
valuation of assets in a matrimonial proceeding). The Division will study the effects of this
suspension and will make such permanent adjustments to the Guidelines as may be advisable in
light of the results, notice of which will promptly be provided to the Bar.
Id.
50. Bobelian, supra note 31. The Commercial Division justices have transferred and regularly re-
jected cases. “The pilot program may lead to the development of more uniform guidelines among the
division’s judges. . . .” Id.
51. The guidelines, as now in effect, state:
In general, the Commercial Division entertains complex commercial and business disputes in
which a party seeks compensatory damages totaling $125,000 or more (exclusive of interest,
costs, and attorney’s fees). Due to caseload considerations, the Justices of the Division are em-
powered to transfer out of the Division cases which, in their judgment, do not fall within this
category notwithstanding that a party has described the case as “commercial” on the Request for
The Creation and Jurisdiction of Business Courts in the Last Decade 157

dollar thresholds, ranging from $25,000 to $100,000.52 Erie County’s rule re-
quiring a $25,000 minimum damage claim is footnoted, with the comment “[i]t
should be noted that the dollar amount at issue to qualify a case as Commercial
may be changed from time to time in order to adjust the workload of the Court.”53
Assuming that the jurisdictional amount is reached, the types of cases that are
listed as within New York County’s Commercial Division jurisdiction include
claims arising out of business dealings such as securities transactions, business
sales, business agreements, trade secrets and restrictive covenants, breach of
contract, breach of fiduciary duty, fraud, misrepresentation, business torts, and
statutory violations arising out of business dealings.54 Other claims within the
Commercial Division’s parameters include Uniform Commercial Code (U.C.C.)
transactions, complicated commercial real estate transactions, shareholder deriv-
ative suits, commercial class actions, commercial bank transactions, internal affairs
of business organizations or liability to third parties of officials thereof, accountant
or actuarial malpractice, and complicated environmental insurance coverage liti-
gation.55 Other Supreme Court Commercial Divisions in New York State pre-
sumptively include within their jurisdictions declaratory judgment actions and
third-party indemnification claims against insurers in cases where the underlying
dispute involves contract claims within the Commercial Division’s scope,56 and
breach of contract actions involving security interests in or leases for personal
property.57 In Kings and Westchester Counties, counsel must certify that the case
is appropriate for the Commercial Division.58
In New York County, if the case is filed under the court’s electronic filing
guidelines, case type jurisdiction expands and the minimum jurisdictional amount
falls to $25,000.59 Thus,
commercial cases in which compensatory damages of $ 25,000 or more are
sought will not be transferred out of the Division if filed in accordance with

Judicial Intervention. The principles set out below will guide the exercise of this authority. Parties
should adhere to these principles when designating a case type on the RJI.
Appendix A, infra p. 248.
The Commercial Division of the State of New York, Guidelines for Assignment of Cases to the Com-
mercial Division, Supreme Court, New York County ( July 3, 2001), available at http://www.courts.state.
ny.us/comdiv/Guidellines_for_Assignment_of_CasesNYC.htm (last visited Sept. 12, 2004).
52. Albany County ($25,000); Erie ($25,000); Kings County ($50,000); Monroe County ($25,000);
Nassau County ($75,000); Suffolk County ($25,000); Westchester County ($100,000). See Appendix
A, infra pp. 250, 252, 254, 256, 258, 260, 262.
53. Id. at 252 n.1.
54. Id. at 248–49.
55. Id.
56. Albany County, Kings County, Monroe County, and Westchester County all have jurisdictions
of this sort. Id. at 251, 255, 257, 263.
57. Albany County, Monroe County, and Westchester County have jurisdictions of this sort. See id.
at 250, 256, 262.
58. See id. at 254, 263–64.
59. The Commercial Division of the State of New York, The Commercial Division of the State of New
York, Electronic Filing Overview, at http://www.nycourts.gov/comdiv/electronic_filing_main%20page.
htm (last visited Sept. 18, 2004).
158 The Business Lawyer; Vol. 60, November 2004

the procedures governing the Division’s Filing by Electronic Means program.


For this purpose, “commercial cases” include commercial real property dis-
putes and the types of matters identified in Paragraphs (A) 1-2 and 4-6 and
(B) 1-8. . . .60
This adds the following types of suits to the Commercial Division’s jurisdiction:
(1) Suits to collect professional fees; (2) Cases seeking a declaratory judgment
as to insurance coverage for a personal injury or property damage action;
. . . (4) Proceedings to enforce a judgment regardless of the nature of the
underlying case; (5) First-party insurance claims and actions by insurers to
collect premiums or rescind policies; and (6) Attorney malpractice actions.61
The jurisdictional guidelines also provide case types that are excluded from the
Commercial Division’s jurisdiction. In New York County, absent electronic filing,
these are collection actions for professional fees, declaratory judgment actions
against insurers based on personal injury or property damages, landlord tenant
matters, real estate disputes, proceedings to enforce judgments whatever the un-
derlying basis of the suit, first party insurance actions concerning premium col-
lection and policy rescission, and lawyer malpractice cases.62 Albany County’s
guidelines also expressly exclude real estate foreclosures, products liability claims,
Medicare or Medicaid actions, and discrimination cases.63 Kings County excludes
even commercial leases;64 however, its Commercial Division will hear discrimi-
nation claims if based on a contract, as will Monroe County.65

D. THE COMMERCIAL DIVISION’S EFFECT AND INFLUENCE


The Commercial Division has been described within New York as “a virtually
unqualified success.”66 Contrary to the state of affairs where business litigants
once seemed to avoid New York’s state trial courts,
[t]he Commercial Division is widely perceived as a viable and in many cases
a preferable alternative for resolving business cases. It is popular because it
has demonstrated that it can provide efficient, cost-effective, and timely pro-
cessing of commercial cases, and has improved the quality and predictability
of judicial decisions.67 These achievements have been brought about by the

60. The Commercial Division of the State of New York, Guidelines for the Assignment of Cases, at
http://www.nycourts.gov/comdiv/Guidellines_for_Assignment_of_CasesNYC.htm (last visited Sept. 12,
2004).
61. Id. See also Appendix A, infra p. 248.
62. Id.
63. Id. at 251.
64. Id. at 255–56.
65. Id. at 255, 258.
66. Loomis, supra note 30, at 5.
67. The Commercial Division makes many of its judicial opinions available on its website via “Law
Reports.” The Commercial Division of the State of New York, Commercial Division Law Report, at http://
www.nycourts.gov/comdiv/law_report.htm. These reports begin in March 1998. The New York Law
Journal has begun publishing columns looking at the decisions issued by the State’s Commercial
Division Judges on the same subject matter. See, e.g., Jeffery A. Miller, Admitting Expert Testimony, N.Y.
L.J., May 29, 2003, at 5.
The Creation and Jurisdiction of Business Courts in the Last Decade 159

experience and expertise of the Commercial Division judges and other court
personnel, their use of advanced case management techniques, the ADR
opportunities available in the Division, and its technological innovations.68
New York’s efforts also have had a powerful impact in other jurisdictions. New
York’s Commercial Division has been studied and/or emulated in greater or lesser
degrees in Philadelphia,69 Massachusetts,70 Maryland,71 and Florida.72 The partic-
ular role played by New York’s Robert L. Haig, Esquire, co-chair of the Commer-
cial Courts Task Force, in spreading knowledge about New York’s experience and
the potential offered through the creation of business and commercial courts must
also be recognized.73
This also brings up the distinct and important impact of the ABA Ad Hoc
Committee on Business Courts.74 This Committee, chaired by R. Franklin Bal-
otti, Esquire, and Roland E. Brandel, Esquire, which included Mr. Haig, and
other such national figures as Dennis J. Block, Esquire, Helen D. Chaitman,
Esquire, William H. Clark, Jr., Esquire, Gandolfo V. DiBlasi, Esquire, Campell
A. Griffin, Jr., Esquire, James J. Hanks, Jr., Esquire, Robert L. Nutt, Esquire, and
David R. Woodward, Esquire, jointly presented the 1997 Report, Business Courts:

68. Haig Opinion Letter, supra note 12.


69. See, e.g., Michael A. Riccardi, Start Small, New York Lawyers Tell Philadelphia Business Court
Advocates, LEGAL INTELLIGENCER, Dec. 3, 1997, at 1.
70. Business Litigation Session Resource Committee, The Business Litigation Session Massachusetts
Superior Court: A Status Report (Feb 2003), at 4–5 [hereinafter Massachusetts Status Report] (on file
with The Business Lawyer, University of Maryland School of Law).
71. Maryland Business and Technology Court, Maryland Business and Technology Court Task Force
Report, Appendix B at 24–25 [hereinafter Maryland Task Force Report], available at http://www.
courts.state.md.us/finalb&treport.pdf.
72. Telephone interview with Michael J. Higer, Esquire (Sept. 11, 2003) (on file with authors). See
also Elaine R. Friedman, New Business Courts Gain Acceptance, NAT’L L. J., Dec. 30, 1996–Jan. 6, 1997,
at B1. Colorado’s Report of the Committee on Business Courts similarly looked to New York’s results
in setting forth the rationale for creating a business court. Governor’s Task Force on Civil Justice
Reform, Committee on Business Courts, Final Report of Governor’s Task Force on Civil Justice Reform
14–15 (Sept. 6, 2000) [hereinafter Colorado Report], at http://www.state.co.us/cjrtf/report/download/
report1.doc.
73. Maryland Task Force Report, supra note 71, discusses the New York Commercial Division at
length, and states that Mr. Haig has acted as advisor to nine states and five countries concerning the
establishment of specialized business courts. Id. at 24. R. Franklin Balotti, Esquire, one of America’s
leading business lawyers and a prime mover in the creation of business courts nationally, said in 1997
that “Mr. Haig has written more on the subject and has been given more credit for establishing business
courts in New York than any other lawyer.” ABA Highlights Business Courts At Annual Meeting in San
Francisco, 5 METROPOLITAN CORP. COUNS. 28 (Sept. 1997). Among other efforts, Mr. Haig has con-
sulted or advised about business courts in: Florida (Telephone interview with Michael J. Higer, Esquire
(Sept. 11, 2003) (on file with authors)); Georgia (Telephone interview with Raymond Fortin, Esquire
(Oct. 1, 2003) (on file with authors)); Boston (E. Douglas Banks, Lawmaker, Corporate Executives Push
for Separate ‘Business Court’ Speed up Commercial Litigation, BOSTON BUS. J. ( Jan. 18, 1999)); Colorado
(Business Court Committee, Minutes of December 2, 1999 Meeting, Governor’s Task Force on Civil
Justice Reform Business Courts Committee, at http://www.state.co.us/cjrtf/min/bcmin120299.htm);
Michigan (Commercial Litigation Committee Reports, State Bar of Michigan Business Law Section
(Dec. 7, 2002), at http://www.michbar.org/business/commercial_reports.html); Connecticut (Susan
Etkind, A Connecticut Commercial Court?, CONN. L. TRIB., Jan. 13, 1997); and Philadelphia (Michael
A. Riccardi, Start Small, New York Lawyers Tell Philadelphia Business Court Advocates, LEGAL INTELLI-
GENCER, Dec. 3, 1997, at 1).
74. The ad hoc committee has evolved into the permanent Business Courts Subcommittee of the
Business and Corporate Litigation Committee of the ABA Section of Business Law.
160 The Business Lawyer; Vol. 60, November 2004

Towards A More Efficient Judiciary,75 which was published in The Business Law-
yer.76 This Report, approved by the ABA’s Section of Business Law, recommended
“that courts which hear a substantial number of corporate and commercial dis-
putes establish specialized court divisions to provide the expertise needed to
improve substantially the quality of decision making and the efficiency of the
courts with respect to such business cases.”77 The words in the Ad Hoc Com-
mittee’s Report resonate through the later national dialogue on the creation of
business courts.78

III. CIRCUIT COURT OF COOK COUNTY COMMERCIAL


CALENDAR
A. HISTORY OF THE COMMERCIAL CALENDAR
On September 9, 1992, an administrative order was issued by Presiding Judge
Donald P. O’Connell of the Cook County Circuit Court’s Law Division, establish-
ing a pilot program for judges to handle entire cases individually.79 This pilot
program for “Individual Calendars” included an individual General Calendar Sec-
tion and a Commercial Calendar Section.80 Prior to the Individual Calendar pilot
programs, the Circuit Court had not used a system with one judge for one case,
but instead used a master calendar system where different judges would address
various pretrial matters, with yet another judge handling the trial. “The master
calendar system . . . faced criticism because a single judge was not accountable
for the case before it went to trial and because of the uncertainty of trial dates.”81
Thus, Individual Calendar judges were to hear cases at every phase, from the start
of the case to its finish.82
As stated above, the experimental program was “equally geared to provide
special expertise in the area of commercial litigation and also to provide sched-
uling priority for the disposition of commercial disputes to enhance the com-
mercial climate in Cook County. . . .”83 Although Presiding Judge O’Connell’s Or-

75. ABA Ad Hoc Committee on Business Courts, Business Courts: Towards A More Efficient Judiciary,
52 BUS. LAW. 947, 947 (1997).
76. This article was substantially the same as the Committee’s August 1, 1996 Report, which was
approved by the American Bar Association’s Section of Business Law. Id. at 947 n.1.
77. Id. at 947.
78. For example, the Committee report is cited in the Massachusetts Status Report, supra note 70,
at 5; the Colorado Report, supra note 72, at 14 n.2; and by Clifford E. Haines, It’s Time to Create a
Special Business Court, LEGAL INTELLIGENCER, May 5, 1997, at 4 (Philadelphia).
79. Individual Calendar Call, General Administrative Order 92-2, In the Circuit Court of Cook
County, Illinois, County Department—Law Division, Sept. 9, 2002 [hereinafter Cook County General
Order]. See Appendix A, infra pp. 238–39.
80. Id. at 238.
81. John Flynn Rooney, Individual Calendar Pilot Project to Start Next Month in Law Division, CHI.
DAILY L. BULL., Aug. 19, 1992, at 1.
82. David Bailey, Commercial Litigation Heads to New Calendar in Law Division, CHI. DAILY L. BULL.,
Aug. 27, 1993, at 1.
83. Id. (quoting the Law Division’s then Presiding Judge Donald P. O’Connell). The first Commercial
Calendar Judge, the Honorable Martin Ashman, stated the primary point of the Commercial Calendar
was not speed and efficiency, but “to give substantial individual justice to individual cases.” Jill Chanen,
The Creation and Jurisdiction of Business Courts in the Last Decade 161

der creating the Commercial Calendar was effective as of September 14, 1992,84
the Commercial Calendar component did not start up immediately on that date.
The Commercial Calendar was introduced in 1993, as the second phase of the
Individual Calendar pilot project, which began with individual calendar assign-
ment of tort cases in the first phase.85 At that point, the intention was to assign
hundreds of cases involving commercial litigation to three Commercial Calendar
judges.86 The Circuit Court brought in the initial three Commercial Calendar
judges seriatim in 1993–94.87
The next goal was to add three more individualized commercial calendars by
the end of 1995.88 In fact, two judges with Commercial Calendars were added in
April 1995,89 and no new positions were added until February of 1997.90 The
1997 addition was required by the increase in commercial calendar case filings.91
Then Presiding Judge Judith N. Cohen stated in 1997 that the “[individual
calendar] program has been tremendously well-received by the commercial liti-
gation attorneys. . . .”92 She described the case load as involving generally “difficult
cases that take a lot of time, and with the increase in commercial filings, the
caseloads that the judges have must remain manageable to achieve the efficiency
that we aim for.”93 A month earlier, Judge Cohen called the Commercial Calendar
a proven “‘success story and a favored forum’ in the business community,” with
most cases being filed without a jury demand.94 Thus, the Commercial Calendar
Judges were chosen to hear most of these cases in the Law Division.95

Judge Sees Justice, Not Speed, As Commercial Calendar Goal, 16 CHI. LAW. 19 (Nov. 1993). The Honorable
Donald O’Connell, Cook County Circuit Court presiding Judge, also described his goals:
I also am hoping to foster the commercial environment in Cook County and the metropolitan
Chicago area by providing the specialized courts for commercial disputes so that commercial
cases won’t have to wait in line behind medical malpractice, structural work act and product
liability cases, and the vast amount of time it takes to prepare those cases for trial. So, commercial
cases would be given some priority toward earlier disposition.
Id.
84. See Cook County General Order, supra note 79.
85. Rooney, supra note 81 (The first phase involved the assignment of tort cases). Today there are
currently four general individual calendar judges in Cook County. Among the variety of case types
heard are “medical malpractice, products liability and contract actions.” John Flynn Rooney, She Has
‘Greatest Assignment’ on Trial Court, CHI. DAILY L. BULL., Aug. 14, 2002, at 3.
86. Bailey, supra note 82, at 1.
87. Mike Austin, Law Division Adds Judge to Handle Commercial Cases, CHI. DAILY L. BULL., Feb. 10,
1997, at 1. See also David Bailey, 2d Individual Calendar Set for Law Division, CHI. DAILY L. BULL., Jan.
28, 1994, at 1.
88. Bailey, supra note 87, at 1.
89. David Bailey, [Chief Judge Donald P. O’Connell] Puts His Stamp on Circuit Court, CHI. DAILY L.
BULL., Apr. 22, 1995, at 17.
90. See Austin, supra note 87, at 1.
91. Id. Presiding Law Division Judge Judith N. Cohen stated that “[t]he new calendar was created
to alleviate the burdens on the already-operating commercial calendars and to make sure that the
division remains functioning as smoothly and efficiently as it has in the past.” Id.
92. Id.
93. Id.
94. David Bailey, Case Disposition Time Continues to Drop, CHI. DAILY L. BULL., Jan. 8, 1997, at 1.
95. Id.
162 The Business Lawyer; Vol. 60, November 2004

A seventh judge was added in 2000, as the Commercial Calendar case load
continued to expand.96 Then Chief Judge O’Connell observed that “[t]he success
of the nearly seven-year-old Commercial Calendar Section is demonstrated by an
increased caseload, which necessitated adding another calendar. . . .”97 In Septem-
ber 2001, new Chief Judge Timothy C. Evans of the Circuit Court of Cook County
expanded the number of judges assigned to the Commercial Calendar to eight.98
His reasoning focused on the continued heavy workload, and the fact that judges
in two of the Commercial Calendar sections were overworked.99

B. CASE LOADS IN THE COMMERCIAL CALENDAR


Between January 1, 1991 and July 1, 1993, Cook County’s Law Division had
reduced its backlog from 62,000 to 36,000 cases as a result of mandatory arbi-
tration, firm trial dates, and voluntary mediation.100 As of July 1, 1993, the average
time for disposition by a jury verdict was 53.6 months, and non-jury case dis-
position by any means was 20.46 months.101 Approximately 30 percent of the
commercial cases included jury demands, compared to 70 percent for other ac-
tions brought in Cook County’s Law Division.102
In late August 1993, one month prior to the Honorable Martin Ashman taking
on the task of becoming the first Commercial Calendar judge, there were ap-
proximately “5,000 pending cases involving breach of contract, professional mal-
practice, fraud, consumer fraud, breach of warranty and statutory actions. . . .”103
Out of these 5,000 pending cases, 400 cases would be assigned immediately to

96. John Flynn Rooney, Popularity of Commercial Calendar Necessitates New Judge, CHI. DAILY L.
BULL., July 12, 2000, at 1.
97. Id.
98. Press Release, Office of the Chief Judge, Chief Judge Evans Announces New Assignments in the
Law Division (Sept. 21, 2001) (on file with authors).
99. Id. As stated above, Cook County also has an individual general calendar, in which complex
cases are identified early and assigned to an individual judge. In early 2002, the Law Division went
from a system of assigning complex cases, e.g., toxic torts, from two specific judges assigned to a
complex litigation section, to assigning such cases among thirty-five judges in the Law Division; with
one of those judges hearing the cases from beginning to end. John Flynn Rooney, Law Division Chief
Moves to Cut Disposition Rate, CHI. DAILY L. BULL., Mar. 8, 2002, at 1. There remain four individual
general calendar judges, who, according to the court’s website “hear cases of every variety pending
and filed within the Law Division in numbers as shall be from time to time designated by the Presiding
Judge of the Law Division.” Circuit Court of Cook County, General Calendars, at http://www.cook
countycourt.org/divisions/index.html (last visited Sept. 21, 2004). The general calendar judges do
sometimes receive a commercial case assignment in addition to cases assigned to the Commercial
Calendar judges. Telephone Interview with Warren Lupel, Esquire (Oct. 2, 2003) (on file with authors)
[hereinafter Lupel Interview]. Mr. Lupel is with Weinberg Richmond LLP in Chicago and was the first
chair of the Chicago Bar Association’s Commercial Litigation Committee, a Committee that includes
a number of Commercial Calendar Judges. Mr. Lupel has been a commercial litigator in Cook County
for thirty-five years and is familiar with practice before and after the establishment of the Commercial
Calendar.
100. Bailey, supra note 82, at 16.
101. Id.
102. Id.
103. Id. at 1.
The Creation and Jurisdiction of Business Courts in the Last Decade 163

Judge Ashman, and each month thereafter he would be assigned one-sixth of all
currently pending two-year-old cases and one-sixth of the new filings.104
The Commercial Calendar’s case load has grown dramatically since its 1993
beginning, and its eight judge contingent is larger than any single county business
court nationally. In 2000, before the appointment of a seventh judge, five of the
six Commercial Calendar judges had individual dockets “ranging between 782
and 1,021 cases.”105 Each of these judges was to transfer one hundred of their
cases to the new seventh judge. The sixth judge had 662 cases and would not be
transferring cases.106 At the time, there were 4,364 suits pending on the com-
mercial calendar.107
Its recent history demonstrates both the volume and movement of cases in the
Commercial Calendar.108 In 1998, 3,697 cases were assigned to the Commercial
Calendar.109 In that year, 3,532 cases assigned to the Commercial Calendar
reached disposition.110 The average disposition age of those cases was thirteen
months, with disposition of cases with jury demands averaging 18.8 months.111
Cases going to verdict averaged thirty-four months.112 In 1999, 3,632 new cases
were assigned; 3,672 reached disposition in an average of 15.8 months, with jury
demand cases averaging nineteen months and cases reaching a verdict averaging
thirty months for disposition.113
From 2000 to 2002, the numbers of cases assigned to the Commercial Calendar
were 3,642, 3,769, and 4,245 cases, respectively.114 During those same years, 2000
to 2002, the number of dispositions was 3,433, 3,765, and 4,278 cases; with
disposition averages of 16.8, 16.0, and 15.3 months, respectively, in 2000, 2001,
and 2002.115 In those years, the average disposition times where cases included
jury demands were 20.5 months, 20.0 months, and 21.4 months, respectively,
with cases actually reaching a verdict averaging forty-nine, forty-six, and forty-

104. Id. This was to reflect “the ratios of all commercial litigation in the division. . . .” Id. at 16. See
also Chanen, supra note 83, at 19 (when Judge Ashman became the first Commercial Calendar Judge
in 1993, he was assigned four hundred pending commercial cases, and would “receive one-sixth of
all new commercial cases filed and one-sixth of all commercial cases reaching their second anniversary
in the system.”).
105. Rooney, supra note 96, at 1.
106. Id.
107. Id.
108. As will be set forth below, this had not yet included a court centered mediation program
which has proven so effective elsewhere in resolving cases. See infra notes 133–134.
109. The statistics set out in the next two paragraphs in the text were provided to the authors by
the Honorable William D. Maddux, Presiding Judge of the Law Division of the Cook County Circuit
Court, for cases through July 3, 2003 [hereinafter Maddux] (on file with authors).
110. Id.
111. Id.
112. Id. The overall Law Division average in Cook County in 1998 was 43.4 months for 528
verdicts. Elizabeth Neff, Lake County Court Web Site Up and Running, CHI. DAILY L. BULL., Aug. 19,
1999, at 3.
113. Maddux, supra note 109.
114. Id.
115. Id.
164 The Business Lawyer; Vol. 60, November 2004

three months to their conclusion from 2000 to 2002.116 In a little over half the
year in 2003, 2,364 cases were assigned to the Commercial Calendar and 2,409
reached disposition.117 The average time for disposition was 15.5 months, with
an average of 21.5 months in cases where a jury was requested—and an average
of fifty-four months for those cases that went to verdict.118

C. COMMERCIAL CALENDAR JURISDICTION


Even while moving toward 4,500 new cases a year, the Commercial Calendar
has a more limited jurisdiction than sister commercial courts in New York or
Philadelphia, when solely looking at case types and not jurisdictional amount.
This is because Cook County has a Chancery Division that hears business disputes
of a type that would be heard, e.g., in New York’s Commercial Division. Among
other actions, the Chancery Division hears injunctions, class actions, declaratory
judgments, contract matters, creditors’ rights disputes, trusteeships, receiverships,
and dissolutions of partnerships and corporations.119 Approximately 40 percent
of the cases heard in the Chancery Division are business cases.120 Cases in Cook
County’s Chancery Division number in the tens of thousands121 and the division
includes nineteen judges.122
The Law Division’s Civil Action Cover Sheet includes “Commercial Litigation”
as a case type heading and offers the filing party the following choices: Breach of
Contract, Professional Malpractice (other than legal or medical), Fraud, Consumer
Fraud, Breach of Warranty, Statutory Action, Other Commercial Litigation, and
Retaliatory Discharge.123 In giving more specific examples of what types of cases

116. Id. In early 2002, there were approximately 26,000 pending Law Division cases, taking an
approximate average of 18 months from filing to disposition for all cases, and an average from filing
to a jury rendering a verdict of 39.3 months. Rooney, supra note 99, at 1. To the extent commercial
cases going to trial may have taken more time, this would have necessarily provided relief to the Law
Division as a whole to address other cases.
117. Maddux, supra note 109.
118. Id.
119. See Clerk of the Circuit Court of Cook County, Chancery Division, [Chancery Court] Description
and Cases Held, at http://www.cookcountyclerkofcourt.org/General_Info/Divisions/Chancery/chancery.
htm (last accessed Oct. 8, 2004). Unlike Delaware, there is no separate chancery jurisdiction in Illinois’
court system, the chancery division thus being, in effect, a type of defined case track or division within
a single court. See, e.g., Meyer v. Murray, 387 N.E.2d 878, 885 (Ill. App. 1979) (holding that “[t]he
divisions of the circuit court of Cook County, law division vis-a-vis chancery division, are for admin-
istrative purposes only and no longer constitute jurisdictional barriers.”).
120. See Geoff Gallas and Tim Dibble, Best Practices In U.S. Business Courts (Draft), Feb. 2004 at 3,
5–6 [hereinafter AEQUITAS, Inc., Georgia Feasibility Study] (on file with authors subject to permission
of the Administrative Office of the Georgia Courts).
121. Even with a downtrend, in 1991 and 1992, the Chancery Division heard over 12,000 cases
each year. David Bailey, Law Division Case Filings Down Nearly 23 Percent in Last Year, CHI. DAILY L.
BULL., Jan. 4, 1993, at 1. There are now approximately 22,500 Chancery cases filed annually, with
approximately 9,000 being equity business cases. AEQUITAS, Inc. Georgia Feasibility Study, supra
note 120, at 5–6.
122. Sixteen judges are General Chancery Judges and three judges are designated Chancery, Me-
chanics’ Lien. AEQUITAS, Inc., Georgia Feasibility Study, supra note 120, at 5–6.
123. See Appendix A, infra p. 239.
The Creation and Jurisdiction of Business Courts in the Last Decade 165

come onto the Commercial Calendar, one judge posted a chart124 which included
the following types of actions: (i) breach of contract, including sale of goods
(U.C.C.), purchase of services, warranties and service contracts, sale of business,
franchise, employment, indemnification, sale of real estate, commercial leases,
construction, professional services; (ii) business torts and other tortious type
claims, including professional negligence (except medical malpractice), fraud and
misrepresentation, Consumer Fraud Act, tortious interference, breach of fiduciary
duty/oppression, retaliatory discharge, miscellaneous statutory, securities, corpo-
rate and business law, not for profit; and (iii) collections, including notes, guar-
anties, and other collections.125 One former Commercial Calendar Judge states
that the existence of a “consensual relationship—some sort of contractual or other
business or commercial dealing—is the key to the Commercial Calendars.”126

D. EFFECTS OF THE COMMERCIAL CALENDAR


The Commercial Calendar has led to an improvement in the case management
of commercial/business disputes and in dispositions being made with greater
speed and justice.127 This is because the judges on the Commercial Calendar have
learned and developed an expertise in commercial law over time, through regu-
larly handling commercial disputes.128 The focus provided by serving on the Com-
mercial Calendar leads to the development of such facility and knowledge, re-
sulting in more expeditious and fair results.129
The Chicago Bar has a great interest in this court program. A September 2003
symposium with Commercial Division judges speaking on litigation in the Com-
mercial Calendar was so well attended that a second room had to be opened to
accommodate all of the attendees.130 The Chicago Bar Association’s Commercial
Litigation Committee, as of June 8, 2004, had 202 members, which is well over
the average of most of the association’s other 120 committees and subcommit-

124. See id. at 239–40. That website, www.commercialcourt.net, is no longer operating.


125. Appendix A, infra pp. 239–40.
126. Interview with the Honorable Peter Flynn, Circuit Court of Cook County’s Chancery Division
( July 12, 2004) (on file with authors). The great majority of Commercial Calendar cases are “contract”
cases, which can range from simple collection suits to multi-party high rise construction actions. A
sizable number of simple collection disputes resolve by default or summary judgment; however, the
Commercial Calendar also includes a considerable body of more complex cases which can demand
the judges’ time and attention, from holding status conferences through motion practice and trial.
Facilitating that sort of individualized case management is one of the reasons the Commercial Cal-
endars were established. Among non-contract cases, the most numerous include consumer complaints
against car dealers under the Magnuson-Moss Warranty Act and/or the Illinois Consumer Fraud Act.
Id. This sort of individual consumer claim appears unique to Chicago’s Commercial Calendar juris-
diction, but it comports with the philosophy of addressing consensual business transactions. Moreover,
it is consistent with the general goals of improving decision making and predictability by having a
body of judges who repeatedly encounter and develop a specific area of the law.
127. Lupel Interview, supra note 99.
128. Id.
129. Id.
130. Id. (discussing symposium held on September 30, 2003, called Commercial Litigation Judges
Roundtable).
166 The Business Lawyer; Vol. 60, November 2004

tees.131 It appears that through the Commercial Litigation Committee, a new effort
has started among the Bench and Bar in Cook County to facilitate practice before
the Commercial Calendar.132
Although there had been no mediation program connected to the Commercial
Calendar in the past, a new court rule was implemented on April 5, 2004, estab-
lishing a mediation program in the Circuit Court of Cook County’s Law Divi-
sion.133 In looking at the prominent role played by mediators in other business
and commercial programs, it is highly likely that court-sponsored mediation in
Chicago will significantly increase the overall disposition rate of cases in Cook
County by leading to more expeditious settlements in cases that can be settled.
“The judges who preside over the individual calendars . . . are going to take a
proactive position to encourage the lawyers in major cases to obtain the help of
a third-party mediator to help resolve the dispute without the need for court
trials. . . .”134

IV. NORTH CAROLINA’S BUSINESS COURT


A. CREATION OF NORTH CAROLINA’S BUSINESS COURT
North Carolina’s Supreme Court established the North Carolina Business Court
in 1995.135 In 1994, North Carolina’s Governor had established the North Caro-
lina Commission on Business Law and the Economy.136 One of the Commission’s
tasks included recommending changes to improve North Carolina’s business cli-
mate, including “[a]ny needed new statutes, rules and regulations designed to
assure that North Carolina offers a legal environment which provides the flexibility
and support to allow businesses to operate successfully in [North Carolina] and
which will attract [businesses] to locate and incorporate [in North Carolina].”137
The Commission recommended creation of a business court,138 which was
achieved through North Carolina’s Supreme Court amending existing state rules139
131. Telephone Interview with Karen Stanton of the Chicago Bar Association (“CBA”) (Oct. 8, 2003)
(on file with authors) (at that time there were 168 members); Telephone Interview with Awilda Reyes
of the CBA ( June 8, 2004) (on file with authors) (at which time there were 202 members.).
132. Lupel Interview, supra note 99. See also Adam W. Lasker, Bar Launching Committee on Com-
mercial Litigation, CHI. DAILY L. BULL., Jan. 8, 2003, at 1.
133. John Flynn Rooney, Mediation the New Pretrial, and Arbitration Subs for the Courtroom, CHI.
DAILY L. BULL., Mar. 23, 2004, at 1. “The new court-sponsored program aims to use mandatory
mediation for the more complex and high-stakes cases, like million-dollar personal injury lawsuits
that can take up months of court and jury time . . . .” Tom McCann, New Program Weaves Mediation
Deeper Into Legal Scene, CHI. LAW., Apr. 2004, at 12.
134. Rooney, supra note 133. Under Circuit Court of Cook County Court Rule 20.02(a), “The
Presiding Judge, individual calendar judge, or motion judge to whom a matter is assigned may order
any contested civil matter pending in the Law Division referred to mediation by entering an Order of
Referral.” CIR. CT. OF COOK COUNTY CT. R. 20.02(a), available at http://www.cookcountycourt.org/
rules/.
135. N.C. SUPER. CT. R. 2.1 (2004). See Appendix A, infra p. 268.
136. Carrie A. O’Brien, The North Carolina Business Court: North Carolina’s Special Superior Court
for Complex Business Cases, 6 N.C. BANKING INST. 367, 375 n.63 (2002).
137. Id. (quoting N.C. SUPER. & DIST. CT. R. 2.2 cmt.).
138. North Carolina Business Court, About the North Carolina Business Court: History of the Court,
at http://www.ncbusinesscourt.net/New/aboutcourt/ [hereinafter North Carolina History].
139. N.C. SUPER. CT. RULE 2.1. See Appendix A, infra p. 268.
The Creation and Jurisdiction of Business Courts in the Last Decade 167

governing North Carolina’s Superior and District Courts.140 The Supreme Court
intended that the business court be a court where cases involving complex busi-
ness litigation would be handled in their entirety by a single judge, to be known
as a Special Superior Court Judge for Complex Business Cases,141 and that the
new court generate a body of case law on corporate governance issues.142 To date,
this role has been filled by the Honorable Ben F. Tennille.143

B. CASE SELECTION IN NORTH CAROLINA’S BUSINESS COURT


Under North Carolina Superior Court Rule 2.1,144 the Chief Justice determines
which cases are designated for the Business Court,145 though the parties may seek
that designation and other judges may, and are even expected to, make recom-
mendations.146 There is not a dollar threshold, nor must any party surrender the
right to a jury trial.147 There is no fixed definition of what is or is not a complex
case, leaving flexibility in decision making.148
Complex cases suitable for the Business Court include statutory cases arising
under North Carolina’s Business Corporation, Professional Corporation, Limited
Liability Company, Uniform Limited Partnership, Securities, Tender Offer Disclo-
sure and Investment Adviser Acts, as well as antitrust disputes.149 Also included
are, “any cases involving removal of a director, dissent and appraisal, involuntary
dissolution of a corporation, or other corporate governance disputes[, and] Mei-
selman150 cases involving disputes in family held businesses [which] are ideal
candidates for assignment as complex business cases.”151 Further, “[p]artnership

140. O’Brien, supra note 136, at 376.


141. N.C. SUPER. CT. R. 2.2 states:
Rule 2.2. Designation of special superior court judge for complex business cases. The Chief Justice
shall designate one or more superior court judges as special judges to hear and decide complex
business cases as provided in Rule 2.1. Any judge so designated shall be known as a Special
Superior Court Judge for Complex Business Cases.
142. Memorandum from I. Beverly Lake, Jr., Chief Justice, Supreme Court of North Carolina, to
All Superior Court Judges (Mar. 7, 2001) [hereinafter Lake Memo]; see Appendix A, infra pp. 266–
68.
143. North Carolina History, supra note 138. “In January of 1996, Governor Hunt appointed Ben
F. Tennille as a Special Superior Court Judge and Chief Justice Mitchell designated him as North
Carolina’s first Special Superior Court Judge for Complex Business Cases. He was reappointed for a
five year term in October 2001.” Id. Among other things, Judge Tennille is part of the sixteen member
ABA Presidential Task Force on Corporate Responsibility and is Chairperson of the Business and
Commercial Courts Committee of the National Conference of State Trial Judges.
144. N.C. SUPER. CT. R. 2.1.
145. Id.
146. O’Brien, supra note 136, at 383.
147. North Carolina Business Court, About the North Carolina Business Court: How a Case is Assigned
to The Business Court [hereinafter North Carolina Guidelines], at http://www.ncbusinesscourt.net/New/
aboutcourt/. See Appendix A, infra pp. 264–65.
148. North Carolina Business Court, About the North Carolina Business Court: Definition of a Complex
Business Case, at http://www.ncbusinesscourt.net/New/aboutcourt/ [hereinafter North Carolina Case
Definition].
149. Lake Memo, supra note 142, at 1.
150. Meiselman v. Meiselman, 307 S.E.2d 551 (N.C. 1983).
151. Lake Memo, supra note 142, at 2.
168 The Business Lawyer; Vol. 60, November 2004

disputes, as well as shareholder derivative actions, are also usually assigned as


complex business cases.”152
The North Carolina Guidelines state that such cases must typically be recom-
mended to be heard by the Business Court to create a consistent body of case
law.153 This comports with the idea that one key factor in determining assignment
to the Business Court:
is whether the outcome will have implications for business and industry
beyond the conflicts of the parties to the litigation. If a written decision on
disposition of the case would provide predictability for others in the same
business or industry in making their business decisions, the case will more
likely be considered for designation.154
The Special Superior Court Judge is required to write an opinion on final dis-
position of the case.155
The Business Court also hears cases involving:
contractual disputes that are motion and paper intensive, involve protracted
trials, and require significant judicial management; antitrust and theft of
trade secret cases; and cases involving determination of legal issues that will
have an impact on industry or business practices beyond the confines of the
case itself. Some, but not all, class actions may be good candidates for as-
signment, and the decision on assignment should be made before the issue
of class certification is decided.156
Judge Tennille has described the three main types of cases as “corporate domestic
disputes,” class actions, and paper or motion intensive cases.157

C. OTHER DEVELOPMENTS IN NORTH CAROLINA’S


BUSINESS COURT
Business Court opinions are posted on the Business Court website,158 and reflect
additional types of cases that court has addressed. These include, among others,
an action brought by a former employer against its former employees and their
new employer,159 a dispute between an insurer and the repair shop used by its

152. Id.
153. Id. (“In order for our judicial system to build a consistent body of case law, these types of
cases must be assigned to the business court on a regular basis, and early identification and assignment
is preferable.”). At this point, however, the Business Court opinions do not have precedential value.
North Carolina Business Court, Report on Activities of the North Carolina Business Court 2002 to 2003,
at http://www.ncbusinesscourt.net/ref/2002%20General%20Assembly%20Report.htm.
154. North Carolina Case Definition, supra note 148.
155. North Carolina Guidelines, supra note 147.
156. Lake Memo, supra note 142, at 2–3.
157. O’Brien, supra note 136, at 385.
158. North Carolina Business Court, Court Opinions, at http://www.ncbusinesscourt.net/New/
opinions/ (last visited Oct. 8, 2004).
159. Sunbelt Rentals, Inc. v. Head & Engquist Equip., L.L.C., No. 00 CVS 10358, 2002 WL
31002955, at *1 (N.C. Super. July 10, 2002).
The Creation and Jurisdiction of Business Courts in the Last Decade 169

insureds,160 a breach of contract action between a hospital and an insurer,161 a


dispute between secured creditors,162 obligations under a promissory note,163
breach of contract claims under the U.C.C.,164 and enforceability of a contractual
arbitration provision.165
Though created years earlier, the Business Court’s defining moment most prob-
ably occurred in 2001 with the Wachovia/First Union/SunTrust merger litiga-
tion.166 SunTrust’s $14.7 billion hostile takeover efforts directed at Wachovia,
while Wachovia sought a friendly merger with First Union,167 had spawned liti-
gation in various forums.168 In early June 2001, the three parties agreed to bring
their state and federal claims into North Carolina’s Business Court.169 Judge Ten-
nille rendered the key decision by August 2001.170 The litigation’s magnitude, the
parties’ recognition that the Business Court embodied a trustworthy and capable
forum to resolve all of their disputes, and the speed171 and thoroughness with
which the legal issues were addressed established a national identity for this
court.172
From its inception through its 2002 to 2003 report to state legislative com-
mittees, the Business Court had been involved in 179 cases from thirty-three
different North Carolina Counties.173 One hundred and sixteen cases were closed,
seventy-three by settlement.174 Twenty-four cases reached judgment, sixteen were
voluntarily dismissed, and three were removed to federal court.175 There were

160. Pack Bros. Body Shop, Inc. v. Nationwide Mut. Ins. Co., No. 01 CVS 805, 2003 WL 21017395,
at *1 (N.C. Super. Jan. 10, 2003).
161. Novant Health, Inc., et al. v. Aetna U.S. Healthcare of the Carolinas, Inc., No. 98 CVS 12661,
2001 WL 34054420, at *1 (N.C. Super. Mar. 8, 2001).
162. Reeve & Assocs. Inc. v. United Carolina Bank, No. 96 CVS 4695, 1997 WL 33446634, at *1
(N.C. Super. Oct. 6, 1997).
163. Bradley v. U.S. Packaging, Inc., No. 95 CVS 8986, 1998 WL 34032495, at *1 (N.C. Super.
Apr. 9, 1998).
164. Caraustar Indus., Inc. v Georgia Pac., Corp., No. 00 CVS 12302, 2001 WL 34000141, at *1
(N.C. Super. Jan. 26, 2001).
165. Polo Ralph Lauren Corp. v. Gulf Ins. Co., No. 00 CVS 5440, 2001 WL 34000140, at *1 (N.C.
Super. Jan. 31, 2001).
166. Mike Dayton, Specialty Commercial Courts on the Rise in Region, ATLANTIC COAST IN-HOUSE,
Apr. 2004, at 28.
167. Id.
168. Julia D. Gray, Wachovia War Calls Big Firms to Attention, FULTON CTY. DAILY REP., May 25,
2001.
169. Julia D. Gray, Bondurant Moves From First Union to Wachovia, FULTON CTY. DAILY REP., June
5, 2001.
170. First Union Corp. v. Suntrust Banks, Inc., No. 01-CVS-8036, slip op. at 1 (N.C. Super. Aug.
10, 2001); see generally Lijun K. Yang, First Union v. SunTrust Banks: The Fight for Wachovia and Its
Impact on North Carolina Corporate Law, 6 N.C. BANKING INST. 335, 337–38 (2002).
171. The Wachovia takeover case was also important “because it proved to be a quick disposition
to a difficult case.” O’Brien, supra note 136, at 386.
172. On the day that Judge Tennille issued his opinion on Sun Trust’s challenge to Wachovia Bank’s
merger with First Union, there were more than 30,000 hits on the website. Id. at 382.
173. Report on Activities of the North Carolina Business Court 2002 to 2003, supra note 153. The
exemplary use of technology as an integrated part of this court, including electronic filing, courtroom
technology, videoconferencing, and Internet access to a well-designed website with abundant practical
information, undoubtedly increases the court’s ability to conduct itself in this broad arena.
174. Id. at 2, 5.
175. Id. at 5.
170 The Business Lawyer; Vol. 60, November 2004

sixty-three current cases of which fifty-three were active, five were on appeal,
three reached settlement, and two were stayed.176 Seventeen of the active cases
were class actions.177 The Business Court’s jurisdiction is limited by the nature
and magnitude of a single case and/or global importance of a case, which can
then be used as guidance in other cases. The court also has a single judge at this
time. Thus, although hearing only a limited number of cases, the program’s design
is more expansive in effect.
The court has enthusiastic support from the State Bar Association.178 It has
further proved a reference point in other jurisdictions seeking to create business
courts, such as Maryland179 and Georgia.180 Georgia’s Feasibility Study recognized
that lawyers are actively seeking assignment to the North Carolina Business Court,
including lawyers from adjacent states, motivated by the court’s understanding of
complex business matters, predictability, fairness, and impartiality.181 This sounds
like the oft-heard description of the qualities litigants find in Delaware’s Chancery
Court.
The Chief Justice of North Carolina’s Supreme Court has established a Com-
mission on the Future of the North Carolina Business Court.182 The thirty-seven
member commission, chaired by North Carolina Supreme Court Justice Mark
Martin, will consider recommendations concerning the court’s expansion.183 This
would involve both the Business Court’s size and scope.184

V. THE NEW JERSEY SUPERIOR COURT LAW DIVISION’S COMPLEX


COMMERCIAL CASE MANAGEMENT
There are individual judges specifically assigned to handle complex commercial
cases filed within the New Jersey Superior Court, Law Division, Civil Part in

176. Id. at 12.


177. Id. at 2.
178. Id. at 23.
179. Compare MD. R. 16-205(b), with N.C. SUPER. CT. R. 2.1(b).
180. See Debra Nesbit, State of the Judiciary Address, Jan. 31, 2003, available at http://www.
ciprg.com/ss/new_detail.asp?A15xi_IdKey_h⳱n10313141328&Client⳱aoc (last visited Nov. 29, 2004)
(the Georgia Supreme Court is “considering the feasibility of a pilot project to expedite business
litigation in our courts. The idea has been proposed by the Corporate Law Section of the State Bar
and would be modeled on a similar effort in North Carolina.”).
181. AEQUITAS, Inc., Georgia Feasibility Study, supra note 120, at 9.
182. Matthew Eisley, Business Court Role May Grow, NEWS OBSERVER, Nov. 13, 2003, at http://
www.newsobserver.com/politics/dome/story/1259442p-7373436c.html.
183. Mike Dayton, Judge Sees Bright Future For Business Courts, ATLANTIC COAST IN-HOUSE, Apr.
2004, at 28.
184. Mike Dayton, Specialty Commercial Courts on The Rise in Region, ATLANTIC COAST IN-HOUSE,
Apr. 2004, at 1 (“North Carolina’s chief justice, I. Beverly Lake Jr., is reportedly already considering
an expansion of the business court’s size and scope.”). The Commissions’ final report and recommen-
dations were issued on October 28, 2004. Chief Justice’s’ Commission on the Future of the North
Carolina Business Court, Final Report and Recommendation (Oct. 28, 2004), available at http://
www.ncbusinesscourt.net/Final%20Commission%20Report.htm. Among other things, the Commis-
sion recommends expansion of the business court, including the addition of two new business court
judges; mandatory jurisdiction over certain specified case types, including “legal issues concerning
the Internet, electronic commerce, and biotechnology;” giving internal precedential value to business
court opinions unless overturned legislatively or on appeal; and specially assigning appellate judges
to business court appeals. Id.
The Creation and Jurisdiction of Business Courts in the Last Decade 171

Bergen and Essex Counties.185 As will be discussed below, since 2000, all New
Jersey Counties now include a tracking designation for complex commercial cases
(Track IV), even where there is no specially designated judge to hear such cases.

A. HISTORY OF COMMERCIAL CASE MANAGEMENT


In 1993, complex commercial matters in Essex County were assigned to spe-
cially designated judges for case management through trial,186 along with some,
but not all, non-complex commercial cases. This designation involved sched-
uling an early case management conference, which was to include a discovery
schedule, a briefing schedule, a date for premarking of exhibits for trial, times
for hearings of any in limine motions, and a trial date.187 This program had been
inspired, at least in part, by “[i]ncreas[ed] competition from alternative dispute
resolution. . . .”188
Early reaction to this effort was favorable; the judges’ expertise in business
matters being a significant factor in that positive response.189 Such positive results,
and information communicated from lawyer and business groups, were brought
to then Chief Justice Robert Wilentz’s attention.190 He announced that a committee
would be created in the future to study the specialized handling of commercial
cases.191
In 1996, a pilot program was created in Bergen and Essex Counties’ Law Di-
visions. Judges with a business or commercial background were designated by
the assignment judges in those two counties to handle commercial matters from
a case’s inception until its conclusion.192 Those promoting creation of this com-
mercial program were concerned that absent a means of effectively adjudicating
commercial disputes, New Jersey would find itself at a disadvantage in relation
to other states that had commercial courts.193 Further, in a 1997 committee study
on commercial case management in New Jersey, the committee chair wrote:
The halcyon days of laissez-faire case management in complex commercial
cases are long gone . . . Unless a program is created to deal with these cases,
staffed by judges with commercial experience and appropriate technological

185. Bergen and Essex are New Jersey’s two largest counties, and the pilot program addressing
complex commercial cases was formally known as the “Complex Commercial Subtrack Program.”
Heather MacGregor, Bringing the Business Back In: Special Forums for Complex Business Cases Seek to
Stanch Commercial Bar’s Loss of Confidence in the Courts, N.J. L.J., Feb. 9, 1998, at 1.
186. Alvin Weiss, Legislation Isn’t Necessary to Create a Business Court, N.J. L.J., Oct. 15, 2001. The
Honorable Burrell Ives Humphreys was Essex County’s Assignment Judge in 1993, and was replaced
by then Judge Weiss in 1994, Judge Weiss having been Presiding Judge in 1993. Henry Gottlieb, Weiss
Takes Hot Seat, N.J. L.J., July 25, 1994, at 1.
187. Weiss, supra note 186.
188. Musical Benches, N.J. L.J., Mar. 17, 1997, at 26.
189. Id.
190. Weiss, supra note 186.
191. Chief Justice Wilentz passed away in July of 1996. Ronald J. Fleury et al., How Wilentz Changed
the Courts, N.J. L. J., July 29, 1996, at 1. As discussed below, the committee was established by his
successor, Chief Justice Deborah Poritz.
192. Weiss, supra note 186.
193. MacGregor, supra note 185.
172 The Business Lawyer; Vol. 60, November 2004

support, such cases will languish and die a slow death on the already over-
burdened dockets of the Law Division.194
Originally, the pilot program in Essex County accepted complex commercial
cases and some non-complex commercial cases, and the Bergen County Court
only accepted complex commercial cases.195 After the 1997 report was issued by
the committee appointed by Chief Justice Deborah Poritz to study the handling
of commercial cases,196 both counties continued to hear complex commercial
cases, with Essex County continuing to handle some non-complex cases (though
not book account cases), and Bergen deciding to continue with only complex
cases.197
In Essex County, the judges relied upon attorney designations in the case in-
formation statements to determine what cases were heard in the pilot program,
including contract, other insurance, real property, and construction; however, at
that time there was still no designation for complex commercial cases. Initially in
Bergen County, Judge Jonathan Harris reviewed the cases to be included in the
pilot program. In Bergen County, cases considered to be complex could include
factors such as the number of parties, the presence of third party claims and
counterclaims, complexity of legal issues, and the nature of the dispute (such as
U.C.C. or class action).198

B. NEW JERSEY’S “BEST PRACTICES”


In 2000, New Jersey amended its rules governing civil practice, adding provi-
sions known as “Best Practices.”199 This involved a system of state-wide rules
governing case scheduling and management, including specific timelines and ju-
dicial involvement in case management.200 Best Practices established a four-tiered
tracking system, with the most complex cases falling within Track IV.201 Track IV
includes complex commercial cases.202 The key difference in Track IV cases is that

194. Id. (quoting United States District Court Judge Stephen Orlofsky who chaired that committee).
195. Telephone interview with Michelle Perone, Esquire, Chief of the Civil Court Program for the
State of New Jersey (Sept. 9, 2003) [hereinafter Perone Interview] (on file with authors). See also
MacGregor, supra note 185.
196. MacGregor, supra note 185.
197. Perone Interview, supra note 195. These pilot programs did not affect business cases otherwise
heard in the Chancery Division which were getting individualized attention by the Chancery judge.
198. Id. As discussed below, the case information statement forms, filed with the complaint when
a case is initiated, were later amended to reflect whether a case was a complex commercial case. Since
that time, in Bergen and Essex Counties, the courts have relied upon counsel’s designation rather than
the courts’ selecting cases.
199. Id. The two chief goals of Best Practices include greater procedural consistency among the
counties and greater trial date certainty. Chief Judge Deborah T. Poritz, Report of the State of the
Judiciary of the State of New Jersey, May 22, 2002, N.J. L.J., May 27, 2002.
200. See, e.g., N.J. CT. R. 1:1-2; N.J. CT. R. 4:5-1(b); N.J. CT. R. 4:5A-1-3.
201. N.J. CT. R. 4:5A.
202. The Case Information Statement to be filed in all civil actions, found at Appendix XII of New
Jersey’s Civil Rules, has four tracks, per Rule 4:5A-1. Track I includes, among other things, book
account, actions on a negotiable instrument, contract, and commercial transactions. This track pro-
vides 150 days for discovery. Track II includes, among other claims, construction, personal injury and
“other torts” and provides 300 days for discovery. Track III includes, e.g., civil rights, medical mal-
The Creation and Jurisdiction of Business Courts in the Last Decade 173

a single judge, for the most part, hears the entire case.203 Cases that involve simpler
business or commercial matters such as book accounts, collections, negotiable
instruments, and contracts do not have a single judge for all matters through trial,
and are treated as Track I cases.204
Thus, there is a complex commercial designation for every New Jersey County,
not only Bergen and Essex Counties, in which cases will be heard by a single
judge (for the most part) throughout the case.205 The difference is that in Bergen
and Essex Counties, the same judge will hear all complex commercial cases;
whereas, in other counties, these cases will be assigned to judges within the civil
law division on a rotating basis.206 Thus, arguably, the judges in Bergen and Essex
Counties will become more experienced in the substantive law and in handling
complex cases.207 In Bergen County, the Honorable Jonathan Harris has been
hearing Complex Commercial Track cases since July of 1997.208
Under Best Practices, it is the lawyers bringing or defending a case in any New
Jersey County who designate cases as complex commercial cases. The judges do
not designate the cases.209 The only dollar limit on jurisdiction is that the case be
in excess of $15,000 to come within the Civil Part’s jurisdiction.210 Thus, even a
large monetary damages claim would not classify a case as complex if it were a
relatively straight-forward collection matter.
In New Jersey, corporate or business disputes of the type historically heard in
the Delaware Court of Chancery are similarly heard by the New Jersey Superior
Court’s Chancery Division.211 These include business or commercial matters that
would be heard in programs like New York’s Commercial Division or Philadel-
phia’s Commerce Case Management Program; e.g., unfair competition, non-

practice, professional negligence, and product liability claims and provides 450 days for discovery.
Track IV includes complex commercial disputes among seven types of cases, and also provides 450
days for discovery, but mandates more case management than Tracks I–III. Track IV also includes
mass torts, which are heard by three judges in the State. Perone Interview, supra note 195.
203. Under all four tracks, a single judge is designated to preside over pre-trial motions and
conferences and discovery, with applications made after that point going to the Civil Presiding Judge.
In track IV cases, however, the designated managing judge is also, “insofar as is practicable and absent
exceptional circumstances” to preside at trial. N.J. CT. R. 4:5B-1. Track IV cases also require case
management conferences. Such conferences are left to the judge’s discretion within the other tracks.
N.J. CT. R. 4:5B-2.
204. See Perone Interview, supra note 195.
205. Id.
206. Id.
207. The Complex Commercial Track judges in Essex and Bergen counties do not only hear com-
mercial cases. Id.
208. MacGregor, supra note 185.
209. Perone Interview, supra note 195.
210. Id.
211. “New Jersey also has a long-standing Chancery Court that has developed special expertise
and abilities with regard to complex corporate law matters. It consists of one chancery judge in each
county.” ABA Ad Hoc Committee on Business Courts, Business Courts: Towards a More Efficient Judiciary,
52 BUS. LAW. 947, 956 (1997). “[S]tates, such as Delaware and New Jersey, have used courts of
chancery since colonial times to handle business cases for which there is no monetary remedy at law.”
Margaret M. Eckenbrecht, A Commercial Venture: Supporters Portray Business Courts as White Knights
Rescuing Overburdened Justice System, 82 A.B.A. J. 35 ( Jan. 1996). New Jersey’s Chancery Division
exists under N.J. CONST. art. VI § 3(3).
174 The Business Lawyer; Vol. 60, November 2004

compete agreements, non-disclosure of trade secrets or confidential information,


protection of trade names or trademarks, shareholder derivative actions, rights of
minority shareholders, piercing the corporate veil, partnership and joint venture
dissolutions, and accounting actions.212 In all New Jersey counties, shareholder
suits or valuation claims are handled in the Chancery Division,213 even in Essex
County with a specifically designated complex commercial Law Division Judge.214
Legislative efforts to create a business court have yet to succeed in New Jersey;215
however,
The chief justice and the [New Jersey] Supreme Court have the power by
assignment and rule to direct the assignment of commercial business matters
in each vicinage to designated judges. Even without such action, the assign-
ment judge in each vicinage has the authority to assign specific types of cases
to designated judges for handling from inception of the case to conclusion,
whether by way of trial or settlement.216
“[T]he Administrative Office of the Courts’ plan[s] to establish complex com-
mercial court pilot programs in the Burlington, Mercer, Hudson and Ocean vic-
inages217 in September [2004].”218 “Under the plan, general equity judges [in those
counties] will be assigned to complex commercial cases involving monetary dam-
ages. . . .”219 As set forth above, these chancery judges traditionally have only
heard equity-based actions.
“[T]he judges’ respective management teams will handle the cases from start to
finish.”220
Complex commercial cases will be eligible for the pilot when all of the par-
ties: [1] request, within 30 days of joinder, management by a general equity

212. The Honorable William A. Dreir & Paul A. Rowe, Esquire, GUIDEBOOK TO CHANCERY PRACTICE
IN N.J. 106–32 (4th ed. 1997).
213. See, e.g., Strasenburgh v. Straubmuller, 683 A.2d 818 (N.J. 1996).
214. See, e.g., In re PSE&G S’holder Litig., 726 A.2d 994 (N.J. Super. Ct. Ch. Div. 1998).
215. Thomas A. Muccifori, Don’t Drop the Ball a Third Time In, N.J. L.J., Nov. 4, 2002.
216. Weiss, supra note 186. See also Report of the Conference of Civil Presiding Judges on Stan-
dardization and Best Practices, at 10–11 (March 1999).
217. These courts are located in Mount Holly, Trenton, Jersey City, and Toms River, New Jersey,
respectively.
218. John Covaleski, Lawyers Rally Behind Plans for Expansion of Business Courts, N.J. L.J., May 31,
2004, at 1. Chief Justice Poritz stated in her May 20, 2004 Report on the State of the Judiciary to the
New Jersey State Bar Association,
attorneys handling commercial litigation have asked for a court specializing in complex com-
mercial cases. We were able to launch a pilot focusing on such cases in Bergen and Essex some
years ago that has been well-received. Although we have only about 300 of these types of cases
a year statewide, we continue to hear that attorneys would like to see an expansion of specialized
case handling in this area. We are responding to those requests. . . . By September, we anticipate
implementing in 4 vicinages a second pilot based on a model that is somewhat different from
the Bergen/Essex pilot.
See Chief Judge Deborah T. Poritz, Report of the State of the Judiciary of the State of New Jersey, May
20, 2004, available at www.njcourtsonline.com [hereinafter Poritz 2004 Report].
219. Covaleski, supra note 218.
220. Id.
The Creation and Jurisdiction of Business Courts in the Last Decade 175

judge; [2] submit a waiver of jury trial; [3] agree to use complementary
dispute resolution techniques; and [4] agree to expedited discovery, with the
goal of ultimate resolution of the case within one year.221
The general equity judges are “typically well-experienced in [complex com-
mercial cases] and the new programs will provide them additional commercial
law training.”222 In return for choosing the program, the parties will get the con-
sistency that comes from a team of court professionals managing the case from
start to finish. “Over a two- or three-year period, the Judiciary and the Bar should
be able to evaluate” whether that consistency leads to more efficient and more
effective case management.223
Complex commercial cases are reviewed for possible assignment to mediation
early in the case, and if referred to mediation, the judge will place time limits on
when the mediation must be completed.224 The mediators are trained and matched
by experience to case type. Since September 2002, the Bergen and Essex County
programs have sent their cases to presumptive mediation, using mediators with
commercial expertise. Approximately 32 percent of cases in which mediation is
completed settle at the mediation, and more settle within a short time after that
mediation process.225 The mediation program has received extremely high ap-
proval ratings, including the expressed willingness to use the process again.226
Mediators are able to have the parties informally exchange information even before
discovery is due, something akin to federal self-executing disclosure in effect.227
Mediators serving in the New Jersey Civil Mediation Program include lawyers as
well as non-lawyers with specialized expertise in the particular area in dispute.228
From July 1, 2001 through June 30, 2002 (the 2002 Court Year), there were
276 complex commercial cases filed statewide, with 164 cases being disposed of
state-wide.229 Forty-eight complex commercial track cases were filed in Bergen
County.230 Twenty-six reached disposition that year, only one having gone to
trial.231 The median time for disposition was 218 days for those cases, compared

221. Poritz 2004 Report, supra note 218.


222. Covaleski, supra note 218. The Bergen and Essex County programs will remain with the law
division judges. Id.
223. Id.
224. Perone Interview, supra note 195.
225. Id.
226. Id.
227. Id. All but four New Jersey Counties have presumptive mediation and send these cases to
mediators with expertise in those types of cases; and even the counties without presumptive mediation
use mediation frequently as well. Non-complex commercial disputes, e.g., book accounts and actions
on negotiable instruments, are sent to non-binding arbitration before commercial arbitrators at the
close of discovery. This reflects New Jersey’s use of specialized procedures for a wide type of business
disputes. Telephone interview with Michelle Perone, Esquire (Oct. 23, 2003) (on file with authors).
228. Id.
229. Perone Interview, supra note 195; Civil Law Complex Commercial case statistics for Court
Year 2002 provided to the authors by Michelle Perone, Esquire (on file with authors).
230. Id.
231. Id.
176 The Business Lawyer; Vol. 60, November 2004

to 24 months in other types of cases.232 Twenty-two complex cases were filed in


Essex County, with eleven reaching disposition, and a 190 day median time for
disposition.233 Overall, complex commercial filings were up during the year.234
The statistics for the 2003 Court Year show that 300 complex commercial cases
were filed state-wide, while 243 cases were disposed of state-wide.235 Thirty-eight
complex commercial cases were filed in Bergen County and thirty-nine cases were
disposed of during the year.236 The median disposition time in Bergen County
was 362 days.237 In Essex County, twenty-one complex commercial cases were
filed, with thirteen reaching disposition during that year, with a median dispo-
sition time of 197 days.238

VI. PHILADELPHIA’S COMMERCE CASE MANAGEMENT PROGRAM


A. HISTORY OF THE COMMERCE CASE MANAGEMENT
PROGRAM
By Order of its Administrative Judge, John W. Herron, Philadelphia’s Court of
Common Pleas initiated a Commerce Case Management Program, effective pro-
spectively for cases filed on or after January 1, 2000.239 The public announcement
of the Commerce Program included members of the bench and bar,240 a working
relationship that has been a hallmark of the Program’s creation, operation, and
success.241 In 1997, Philadelphia Bar Association Chancellor Clifford Haines de-
scribed the need to create a specialized business court as an element in combating
loss of jobs and business (by contrast to neighboring New Jersey and Delaware,
which were growing in these areas).242
The proposal also recognized the already existent reality of specialization in
other contexts and the need to take advantage of the efficiency and effectiveness

232. Id.
233. Id.
234. Id.
235. Civil Law Complex Commercial case statistics for Court Year 2003 provided to the authors
by Michelle Perone, Esquire (on file with authors).
236. Id.
237. Id.
238. Id.
239. In re: Commerce Case Management Program, Administrative Docket 01-2000, First Jud. Distr.
Pa. C.P. Civ. Trial Div. (Feb. 22, 2000) [hereinafter Commerce Case Order] (applicable to all cases
filed as of January 1, 2000). Thus, unlike New York or Cook County, the Commerce Program was to
begin with the assignment of new cases only. This Order was originally issued on November 9, 1999
and was slightly amended on the later date.
240. Lori Lichtman, A Court of Their Own: Purely Business Disputes to be Handled by New Philadelphia
C.P. Commerce Case Program, LEGAL INTELLIGENCER, Oct. 14, 1999, at 1. Also in attendance was
Governor Tom Ridge’s outgoing general counsel who thanked Administrative Judge John W. Herron
for his efforts in creating the Program.
241. The Honorable Albert W. Sheppard Jr., The Philadelphia Commerce Court—Dedicated to Find
the Best Solutions for Business Disputes, METROPOLITAN CORP. COUNS. (Dec. 2002).
242. Clifford E. Haines, It’s Time to Create a Special Business Court, LEGAL INTELLIGENCER, May 5,
1997, at 4.
The Creation and Jurisdiction of Business Courts in the Last Decade 177

that such a specialized case management system could offer.243 The proponents
argued that proper address of business cases would increase the rest of the court
system’s time and resources to address other matters.244 The organized bar in
Philadelphia had long championed the establishment of a state-wide business
court in Pennsylvania; and when several state-wide legislative efforts failed,245 bar
leaders worked closely with Judge Herron in designing Philadelphia’s new Com-
merce Case Program, established by Administrative Order, in late 1999.246
Patterned after New York’s Commercial Division, and partially inspired by Dela-
ware’s Chancery Court,247 the Commerce Case Management Program provides
that one judge follows each commerce case from beginning to end.248 The Com-
merce Program seeks to provide efficient and expeditious resolution to business
disputes and incorporates an active ADR complement to the Program.249 Tens of
highly qualified and experienced practicing lawyers have volunteered their time
to this end, and an effort is made to assign cases for settlement conferences or
mediations to these “Judges Pro Tempore” based on the type of case and area of
specialization.250 Removing burdensome and frequently complex business cases
from the general docket and assigning them to judges accustomed to such cases
works to unclog the system, and to more efficiently address other cases as well.251
The Commerce Program started with two judges,252 and a third was later
added.253 The Commerce Program case volume has numbered over five hundred
a year. The goal is not high volume or turnover, but in the words of one of its
judges, “to provide a quality product.”254 The idea, that quality through expertise
and focus is the primary goal, with increased efficiency and expeditious treat-
ment of cases a natural by-product, is a common theme in the creation of Busi-
ness courts.255 Although the Commerce Program has been subject to some dis-

243. Id.
244. Id.
245. Legislative efforts to create business courts in Pennsylvania were longstanding, but ultimately
no such legislation has been passed. Marilyn Wimp, Business Court Is, Once More, High on Bar’s Agenda,
PHILA. BUS. J., July 27, 1998, at http://philadelphia.bizjournals.com/philadelphia/stories/1998/07/27/
focus3.html. Pennsylvania had been the first state nationally to propose such legislation.
246. See supra note 239.
247. Lichtman, supra note 240.
248. Sheppard, supra note 241.
249. Lichtman, supra note 240.
250. Sheppard, supra note 241. These lawyers act at settlement conferences or as mediators. Parties
can locate them on the Court’s website, at http://courts.phila.gov/pdf/cpcvcomprg/judgesprotemlist.
pdf.
251. Sheppard, supra note 241.
252. Commerce Case Order, supra note 239.
253. Lori Lichtman, Herron Picks Three Judges as Supervisors, LEGAL INTELLIGENCER, Jan. 22, 2001,
at 1.
254. Danielle N. Rodier, Attorneys Impressed with Commerce Court, LEGAL INTELLIGENCER, Aug. 6,
2003, at 1 (quoting the Honorable Gene D. Cohen).
255. See, e.g., Massachusetts Status Report, supra note 70, at 5 stating:
[B]y matching judges with appropriate expertise to litigation requiring that expertise, judicial
resources may be appropriately targeted through the removal of otherwise time-consuming cases
from the regular docket: as the ABA Ad Hoc Committee observed [about the New York Supreme
178 The Business Lawyer; Vol. 60, November 2004

sent,256 the court has retained its commitment to the Commerce Program.257 The
existence of “specialized courts” in Philadelphia, including a complex litigation
court,258 predates the Commerce Program, reflecting the fact that specialization in
Philadelphia’s Court of Common Pleas is beneficial and not a new phenomenon.

B. COMMERCE CASE MANAGEMENT PROGRAM JURISDICTION


Types of cases presumptively heard in the Commerce Program include, among
others: intra-corporate disputes; disputes between businesses including but not
limited to U.C.C. transactions, sales of businesses, sales of services to businesses,
non-consumer bank or brokerage accounts, surety bonds, purchases or sales or
leases of, or security interests in, commercial, real or personal property, and fran-
chise agreements; trade secrets; non-compete agreements; business torts; intellec-
tual property disputes; Pennsylvania Securities Act claims; derivative actions; class
actions based on claims otherwise falling within these ten types, and consumer
class actions other than personal injury and products liability claims; and corporate

Court’s Commercial Division], ‘the work of four generalist judges can be accomplished by three
specialty business judges.’
Chanen, supra note 83, at 19 (first judge in Chicago’s specialized commercial litigation docket “con-
templated naming the call the ‘rocket docket’ but then thought better. ‘This is not about speed and
efficiency. . . . It’s about justice. The point of the calendar is to give substantial individual justice to
individual cases.’”).
256. See, e.g., Board Applauds Efforts of C.P.’s Commerce Program, LEGAL INTELLIGENCER, Apr. 19,
2002, at 2; Productivity Doesn’t Match Resources, LEGAL INTELLIGENCER, Apr. 19, 2002, at 2. Such debate
is not unique to Pennsylvania. See, e.g., Chris Mahoney, The Jury is Still Out on Creating a Business
Court, BOSTON BUS J., May 19, 2000, available at http://boston.bizjournals.com/boston/stories/2000/
05/22/story8.html (on debated issues prior to creation of Business Litigation Session in the Suffolk
Superior Court, Massachusetts). As discussed below, not only was a pilot business program eventually
established in Boston, that program has now been made permanent and expanded to other counties.
See infra notes 273–310 and accompanying text.
257. Laurie Stewart, Jones Appointed to Commerce Court, LEGAL INTELLIGENCER, Sept. 16, 2002, at
1 (As stated by Supervising Judge William Manfredi, upon the appointment of Judge Darnell Jones to
the Commerce Program, “I think we have three of our most competent and most experienced judges
in commerce court, which reflects the commitment that [Administrative] Judge Fitzgerald and I have
to the success of the court.”) The National Center for State Courts recently issued its final report of a
study on all civil programs in Philadelphia’s Court of Common Pleas. The study, generally finding
Philadelphia’s civil trial division “one of the finest and most successful urban trial courts in the country,”
includes a discussion of developments in the Commerce Program, along with topics for the Program’s
further study and refinement. The overall tenor of the report reflects a fundamentally successful
program “operating very effectively,” with the desire to enhance it even further. See David C. Steelman
& Richard Van Duizend, National Center for State Courts, Civil Programs in the Philadelphia Court
of Common Pleas, at ii, xi–xiii, 51–55 (Sept. 30, 2003), available at http://fjd.phila.gov/pdf/report/
NSCS-Civil-Final-Report.pdf.
258. In Philadelphia, there are numerous specialized trial level court programs including a separate
docket for complex mass tort actions (including, e.g., asbestos, DES, latex glove, lead paint, breast
implant, carpal tunnel, pseudo-psychiatric, bone screw litigation, among other mass torts), a docket
created well before the Commerce Case Management Program. See The Honorable John W. Herron &
The Honorable Allan L. Tereshko, Complex Litigation Center Programs, Philadelphia Court of Common
Pleas, at http://courts.phila.gov/pdf/civil2001/clc.pdf. This is in addition to more typical specialization
into Family Court, Orphan’s Court, and Civil and Criminal trial divisions.
The Creation and Jurisdiction of Business Courts in the Last Decade 179

trust matters.259 All such cases must involve disputes which exceed $50,000; cases
below that amount being subject to mandatory arbitration in the Court of Com-
mon Pleas (which arbitrations are subject to de novo appeal in the Court of
Common Pleas, but not to the Commerce Program).260
The Commerce Program also hears declaratory judgment actions brought by
insurers, and coverage disputes and bad faith claims brought by insureds where
the dispute arises from a business or commercial insurance policy. In addition,
the Commerce Program hears third-party indemnification claims against insur-
ance companies where the subject insurance policy is a business or commercial
policy and where the underlying dispute would otherwise be assigned to the
Commerce Program, not including claims where the underlying dispute is prin-
cipally a personal injury claim.261 All of the above types of actions may involve
individuals as well as businesses, if the criteria are met and the essential nature
of the claim is a business dispute.262
The Commerce Program has case tracking criteria, which includes expedited,
standard, and complex tracks.263 Expedited matters are cases with four or less
litigants and the disputes at issue involve, e.g., enforcement of contracts for goods,
insurance declaratory judgment actions, other contract actions, and landlord ten-
ant actions.264 Standard track cases include matters with more than four litigants
in the previously described cases, as well as cases with any number of litigants

259. See Appendix A, infra pp. 269–70. Until January 2004, almost all class actions were coming
into the Commerce Program. Sheppard, supra note 241. Non-commercial class actions will now be
assigned to a new class action program, with the Honorable Mark I. Bernstein heading the program.
Melissa Nann, Class Action in Philadelphia Court to be Reassigned, LEGAL INTELLIGENCER, Dec. 18, 2003,
at 3 (“All class actions currently are assigned to the Commerce Case Management Program, but starting
next month, they will be handled by Judge Mark I. Bernstein, who will head a new class action team
in the regular civil program.”). Class actions that would otherwise come within the subject matter of
the Commerce Program will remain in that program. Interview by Lee Applebaum, Esquire, with the
Honorable Mark I. Bernstein ( June 8, 2004) (on file with authors). See also The Honorable James J.
Fitzgerald III et al., First Judicial District. Pa. Court of Common Pleas Trial Division—Civil, Supple-
mental Notice to Bar Re: Class Actions (Dec. 18, 2003), at http://courts.phila.gov/pdf/notices/2003/
notice-09clsup-O3.pdf (all class action cases filed after January 1, 2004 to be assigned to Class Action
Program, but “[a]ny cases which meet the criteria for inclusion in the Commerce Program shall be
assigned thereto.”). At the same time, notice was given that after January 5, 2004, all major non-jury
cases other than cases involving “Torts, Rent, Lease & Ejectment and Mortgage Foreclosure matters”
would “be assigned to the Commerce Program for case management and disposition.” The Honorable
James J. Fitzgerald III & The Honorable William J. Manfredi, First Judicial District Pa. Court of
Common Pleas Trial Division—Civil, Supplemental Notice to Bar Re: Non-Jury Program (Dec. 18, 2003),
at http://courts.phila.gov/pdf/notices/2003/notice-09mnsup-03.pdf.
260. See Appendix A, infra p. 271.
261. Id. at 270.
262. Id.
263. See In re: Commerce Case Management Program, Administrative Docket 02 of 2003, C.P.,
First Judicial District Pa., Apr. 29, 2003, at Exhibit D, Commerce Program Tracking Formula [here-
inafter Tracking Formula], at http://courts.phila.gov/pdf/regs/2003/cptad02-03.pdf.
264. Id. at Exhibit F. The full list includes: contracts (goods) enforcement, insurance, declaratory
judgment, subrogation action, mechanics lien, negotiable instruments, other contracts, replevin, fore-
closure, garnishment (land), landlord/tenant actions, mechanics lien enforcement, real property
(other), title to real property, rent (lease or ejectment), equity (no real estate or real estate), franchise
disputes, confession of judgment, foreign judgment, petition to stay arbitration, and petition to vacate
or modify arbitration awards. Id.
180 The Business Lawyer; Vol. 60, November 2004

that include a purchase/sale of business or of business assets, bad faith, construc-


tion contracts, shareholder suits, fraud, securities law claims, surety bond cases,
business torts, non-compete agreements, trade secrets, corporate trust affairs, and
partnership disputes.265 Complex cases include intellectual property claims, ac-
counting malpractice, legal malpractice, and other malpractice claims within the
Program’s parameters.266 Expedited cases are expected to be ready for trial in
thirteen months, standard cases in eighteen months and complex cases in twenty-
four months.267
The Commerce Program’s webpage, within the Court of Common Pleas’ web-
site, has much of the basic information about the Commerce Program, including
relevant forms and guidelines.268 In addition, there are readily accessible links to
written opinions issued by the Program’s judges, with summaries of each opinion
available through one link, and an index of each opinion with basic descriptions
on another.269 There is also a topic search function able to go through all of the
opinions by counsel inputting search terms.270
As of July 4, 2004, there were over 435 opinions online for the guidance of
the bar and their clients.271 These written opinions provide an opportunity to
evaluate potential claims and defenses. For example, in a court hearing a signifi-
cant number of injunctive actions, this readily available guidance can save pre-
cious time in formulating an argument. Further, it provides counsel and their
clients with pre-filing information about the likelihood of success, and whether
pursuing the action, defending the claims or seeking settlement is the soundest
course.272

VII. BUSINESS LITIGATION SESSION IN THE SUPERIOR COURT


OF MASSACHUSETTS
In October 2000, Superior Court Chief Justice Suzanne DelVecchio established
the Business Litigation Session of the Suffolk Superior Court as a two year pilot
program.273 Under this program, “a single judge, experienced in litigating complex

265. Id.
266. Id.
267. Id. at Exhibit D.
268. The Philadelphia Courts, First Judicial District Pa. Court of Common Pleas Trial Division—
Civil, Commerce Program, at http://courts.phila.gov/common-pleas/trial/civil/commerce-program.
html.
269. Id.
270. Id.
271. The Philadelphia Courts, Commerce Court Opinions, at http://courts.phila.gov/cgi-bin/
opinions/comcrtsearch.cgi?dropdown⳱cptcvcom.
272. On July 4, 2004 a search of the word “injunction” provided a response including seventeen
opinions with that word in their topic summary. See Commerce Court Opinions, at http://courts.
phila.gov/cgi-bin/opinions/topicsearch.cgi?topic⳱injunction.
273. The Honorable Allan Van Gestel, Why a Business Litigation Session at Suffolk Superior Court, 45
BOSTON BAR J. 14 (Nov.–Dec. 2001). This was the result of a five year process that began in the wake
of the New York Commercial Division’s creation. Massachusetts Status Report, supra note 70, at 4. At
the time the pilot program was put into effect, the Superior Court already had experience in estab-
lishing specialized sessions. Interview with Honorable Suzanne V. DelVecchio, Making A Business Court
A Reality, METROPOLITAN CORP. COUNS., N.E. ed., May 2003, at 47.
The Creation and Jurisdiction of Business Courts in the Last Decade 181

business cases” handles the case from beginning to end.274 The judge becomes
involved early in case management, which includes attempting to set a firm trial
date at the time of the Superior Court’s analogue to a federal Rule 16 conference.275
Jury trials are permitted, but are not normally selected by the parties.276

A. CASES HEARD IN THE BUSINESS LITIGATION SESSION


Inclusion of a case before the Business Litigation Session is discretionary,277
though some categories of cases are presumptively included.278 Cases that are
presumptively or otherwise included within the Business Litigation Session’s ju-
risdiction involve, among other claims, governance and internal affairs of corpo-
rations, partnerships and joint ventures; shareholder derivative suits; intellectual
property; trade secrets; non-compete agreements; banking; investment banking;
financial advisers; brokerage firm matters; mutual and money market funds; anti-
trust; trade regulation laws; unfair acts or practices involving businesses; lender-
borrower dealings; professional malpractice claims brought by businesses; and
businesses in dispute with government agencies.279 Also included are claims for
breach of contract, breach of fiduciary duty, fraud, misrepresentation, and busi-
ness torts.280 Violations involving businesses, such as unfair competition, are en-
compassed if they “have complex factual or legal issues oar [sic] are likely to
require complex case management . . .” as are U.C.C. claims involving complex
factual or legal issues and commercial claims involving insurance, construction,
real estate and consumer matters, that similarly have complex factual or legal
issues.281
From October 2, 2000 through mid-September 2001, the Business Litigation
Session’s first year, 309 cases were accepted.282 At least seventy-eight of these
cases were already in the system, meaning that approximately 230 new cases came
in during the first year.283 One hundred and thirty-nine of that first set of cases
were resolved in the first year, and nearly one hundred temporary restraining
orders and preliminary injunctions were considered.284
The total number of cases accepted into the Business Litigation Session reached
610 by January 28, 2003.285 Filing frequency increased over time with approxi-
mately five to seven cases filed each week.286 Three hundred and seventy-four

274. Van Gestel, supra note 273, at 29–30.


275. Id.
276. Id. at 30.
277. Id.
278. Notice to Bar, Business Litigation Session Suffolk Superior Court, 29 MASS. LAW. WKLY. 268 (Oct.
2, 2000) [hereinafter Massachusetts Order]. See Appendix A, infra pp. 241–42.
279. Van Gestel, supra note 273, at 30.
280. Massachusetts Order, supra note 278.
281. Id.
282. Van Gestel, supra note 273, at 31.
283. Id. See also Massachusetts Status Report, supra note 70, at 12.
284. Van Gestel, supra note 273, at 31.
285. Massachusetts Status Report, supra note 70, at 12.
286. Id.
182 The Business Lawyer; Vol. 60, November 2004

cases reached disposition during that time; approximately half by settlement and
the remainder by trial, dispositive motion or removal.287 “The case load that other
[Superior Court] sessions would have had has been significantly reduced because
the cases that go to the Business Litigation Session do not go to the other regular
sessions of the court.”288
According to information collected by the Business Litigation Session Resource
Committee, 853 cases were accepted into the BLS from its inception through
November 2003.289 A search of the Social Law Library database290 reveals that
Judges Allan van Gestel and Margot Botsford have issued over 300 written deci-
sions since the Session’s inception in 2000.291 Judge van Gestel has been assigned
to the BLS full time since it began while Judge Botsford has been assigned part-
time to the BLS since late 2002.292
Cases in the Business Litigation Session “generally appear to be consistently
more complex” than in other Superior Court sessions.293 Approximately 30 per-
cent of the cases primarily involve contract disputes, 13 percent non-compete
agreements, 13 percent shareholder disputes, 11 percent commercial disputes, 11
percent business disputes, 10 percent partnership disputes, 9 percent employ-
ment disputes, 9 percent real estate or landlord tenant disputes, and 7 percent
construction contract actions.294

B. RESPONSE TO THE BUSINESS LITIGATION SESSION


In Boston’s early experience with the Business Litigation Session, the court has
received high marks for both “fairness and efficiency.”295 The same article cites
the satisfaction of a single business that both won and lost non-compete cases in
the Business Litigation Session.296 This positive attitude was borne out by a survey
conducted as part of a Status Report prepared by the Business Litigation Session
Status Resource Committee, which was issued in February of 2003.297
Among other things, the survey showed 88 percent of the lawyers responding
were extremely or very satisfied with the Business Litigation Session overall; 83
percent indicated that the session improved legal services to clients; 94 percent
were extremely or very satisfied with the judges;298 58 percent found their expe-

287. Id.
288. Focus On New England—Business Litigation Session; A Specially Suited Forum For Business Cases,
METROPOLITAN CORP. COUNS., N.E. ed., May 2003, at 50 (quoting Gael Mahony, Esquire, Co-Chair
of the Business Litigation Resource Committee).
289. Email from Sarah Herlihy, Esquire, to Beth I. Z. Boland, co-chair of BLS Resource Committee
(May 10, 2004) [hereinafter Herlihy-Boland email] (on file with authors).
290. This is a subscription service via www.sociallaw.com.
291. Herlihy-Boland email, supra note 289.
292. Id.
293. Massachusetts Status Report, supra note 70, at 12.
294. Id. at 15. As set forth in Appendix D, “[c]ases may be counted in more than one category.”
295. Verdict: Business Court has Made Strong Case for Itself, BOSTON BUS. J., Aug. 2, 2002, at 1.
296. Id.
297. Massachusetts Status Report, supra note 70, at 13–14 and Appendix E.
298. The Status Report cited the experience and wisdom of Presiding Justice Allan van Gestel,
Judge Margot Botsford, Judge Nonnie Burnes and Judge Gordon Doefer as meriting much of the credit
for the Session’s apparent success. Id. at 3.
The Creation and Jurisdiction of Business Courts in the Last Decade 183

rience more favorable than with private ADR, with 60 percent stating they would
recommend the Business Litigation Session over ADR to their clients; and 97
percent stating that they would recommend the business session to other col-
leagues and clients.299 The results were consistent regardless of firm size and
whether the attorneys represented individuals or corporations.300
Significantly, 95 percent of those responding to the Business Litigation Survey
stated that the Business Litigation Session should become permanent; and 89
percent recommended expansion to other Massachusetts counties.301 Shortly after
the Status Report, Chief Justice DelVecchio issued an Administrative Directive
making the Suffolk Business Litigation Session permanent and expanding the
session on a pilot basis to three other counties.302 Case selection in the Business
Litigation Session will remain discretionary and the presumptive category of cases
will remain unchanged, with “complexity and the need for case management” the
principal measure for acceptance.303 One of Chief Justice DelVecchio’s accom-
plishments is that the Business Litigation Session has not created additional bud-
getary expenses.304
The Status Report adduces some of the historical causes for creating the Busi-
ness Litigation Session.305 Among these was the creation and success of business
courts elsewhere, including the New York County Commercial Division’s suc-
cess,306 and the competition such courts presented. In addition, Massachusetts’
courts had received harsh rankings in a U.S. Chamber of Commerce Survey.307
The concern tied into the general perception in the late 1990s that businesses
were fleeing Massachusetts’ state courts because of a belief that generalized courts
could not handle specialized matters, e.g., derivative suits or trade secrets cases,
and because “the time required from filing to disposition was taking longer than
the parties needed to resolve their disputes.”308 Justice Allan Van Gestel, the Busi-

299. Id. at 13–14.


300. Id. at 14.
301. Id. at 13–14.
302. Super. Ct. Bus. Litig. Session Extension and Expanded Venue, Administrative Directive No. 03-
01, Feb. 12, 2003 (on file with The Business Lawyer, University of Maryland School of Law). Sheri
Qualters, Business Court to Expand to Other Counties, BOSTON BUS. J., Feb. 14, 2003, available at http://
boston.biz.journals.com/boston/stories/2003/02/17/story4.html?t⳱printable.
303. Id.
304. Focus On New England—Business Litigation Session; A Very Innovative Way To Handle Complex
Commercial Cases, METROPOLITAN CORP. COUNS., N.E. ed., May 2003, at 49 (quoting Beth I. Z. Boland,
Esquire, Co-Chair of the Business Litigation Session Resource Committee as follows on that point:
“The key point is that the business court did not cost a dime, it is a very innovative way to handle
complex, commercial cases and it has been and is a smashing success. The Chief Justice has set up
an independent committee to make sure the session is working well and trying to change it if it isn’t—
an example of the judiciary doing an outstanding job of being innovative, cost effective and conscious
of the good that can come from the judiciary taking responsibility for managing itself.”). Ms. Boland’s
co-chair, Gael Mahony, Esquire, has described it as “cost neutral.” Focus On New England—Business
Litigation Session; A Specially Suited Forum For Business Cases, METROPOLITAN CORP. COUNS., N.E. ed.,
May 2003, at 50.
305. Massachusetts Status Report, supra note 70, at 4–8.
306. Id.
307. Id.
308. Focus On New England—Business Litigation Session; Roundtable: Corporate Counsel Applaud Ses-
sion’s Success, THE METROPOLITAN CORP. COUNS., N.E. ed., May 2003, at 56 (quoting Andrew Grainger,
President of the New England Legal Foundation).
184 The Business Lawyer; Vol. 60, November 2004

ness Litigation Session’s first full time, as well as presiding, judge addressed some
of these issues in a 2001 piece on the need for a business court.309 His article is
of particular interest because it combines a sense of history and present necessity
in describing the need for a business court as a matter of practical dignity.310

VIII. NEVADA BUSINESS COURTS IN THE SECOND AND EIGHTH


JUDICIAL DISTRICT COURTS
In late 2000, Nevada’s Supreme Court approved local rules creating business
courts in Nevada’s Second and Eighth Judicial Districts.311 Rules creating the busi-
ness court in the Second Judicial District, sitting in Reno, became effective as of
November 20, 2000.312 Rules creating the business court in the Eighth Judicial
District, sitting in Las Vegas, became effective January 1, 2001.313

A. GOALS OF NEVADA’S BUSINESS COURTS


The Business Court’s focus is on complex civil business cases.314 A clear goal
of the Business Court is expeditious resolution of cases, and minimizing the on-
going financial exposure that would otherwise occur through protracted litiga-
tion.315 The court provides the benefits of close case management beginning with
early case conferencing to address settlement, and accelerated discovery and mo-
tions. Again, the focus is on resolving disputes as early as possible and in helping
the litigants avoid business disruption.316 The Business Court thus provides an-
other vehicle for dispute resolution, where the parties might otherwise choose
private mediation or arbitration.317

B. CREATION OF NEVADA’S BUSINESS COURTS


The process leading to the Business Court’s implementation began with the
creation of a legislative subcommittee to encourage business development in Ne-
vada, and the creation of the Sub-subcommittee for the Examination of the Busi-

309. Van Gestel, supra note 273.


310. Id. at 14–15. “Should Massachusetts, a commercial and business leader since the 18th century,
when sailing ships, laden with spices and tea from Java and Sumatra and other treasures from the
Orient, first docked at Salem, and now a major player in high technology, sophisticated finance,
medical care, insurance, and the economic aspects of higher education, be left to bask in the faded
glories of its past in this emerging area of judicial activity? If so, to what end?” Id. at 14.
311. Letter from The Honorable Brent Adams, to Mitchell L. Bach, Esquire ( June 19, 2003) (on
file with authors) [hereinafter Judge Adams Letter]. Judge Adams is the presiding judge of the Business
Court in Nevada’s Second Judicial District in Reno, Washoe County.
312. NEV.W.D.C.R. 2.1. See Appendix A, infra pp. 246–47.
313. NEV. E.J.D.C.R. 1.61. See Appendix A, infra pp. 245–46.
314. Letter from The Honorable Gene T. Porter, to Mitchell L. Bach, Esquire (Sept. 19, 2003)
[hereinafter Judge Porter Letter] (on file with authors).
315. Id.
316. Judge Adams Letter, supra note 311.
317. Judge Porter Letter, supra note 314.
The Creation and Jurisdiction of Business Courts in the Last Decade 185

ness Court and Business Laws.318 As stated in the title, Nevada’s Legislature and
Judiciary perceived a business court’s creation as part of an effort to promote
business in the state by improving the justice system.
Nevada had a natural resource on the subject of business courts, Professor
Jeffrey W. Stempel, who addressed the first meeting of the Sub-subcommittee on
January 7, 2000.319 Among other things, Professor Stempel is reported as stating
that specialized courts “have become the fabric in the way business and modern
judicial systems are handled[; and that] [t]his is a natural consequence of the
division of labor generally seen in the practice of law and even government.”320
He stated that limited experience with business courts has been very positive,
mentioning the Delaware Court of Chancery, North Carolina’s Business Court,
and New York’s Commercial Division (though he had no study to empirically
support that conclusion at the time).321 On the issue of the court’s jurisdiction,
he indicated that the court should go beyond a solely equitable jurisdiction and
could include contract disputes, securities fraud and corporate governance mat-
ters.322 He added that a wider jurisdiction should be more attractive to business.323
Nevada’s Chief Justice Robert E. Rose similarly thought that the New York
model would be better within Nevada’s court system.324 Chief Justice Rose chaired
the Supreme Court’s Business Court Task Force, which suggested rules creating
business courts within the Second and Eighth Judicial District Courts.325 The
proposed types of cases setting the court’s jurisdiction were adopted virtually as
written; however, potential additions proposed by some of the judiciary did not
become part of the final rules.326

C. CASES IN NEVADA’S BUSINESS COURTS


The courts were created by amending the individual District Court rules.
Washoe County’s Rules 2.1(a–c), governing the Business Court in Reno, provide

318. Sub-Subcommittee for the Examination of the Business Court and Business Laws, Minutes of
the Meeting of the Legislative Commission Subcommittee to Study Methods to Encourage Corporations and
Other Business Entities to Organize and Conduct Business in This State ( Jan. 7, 2000) [hereinafter Nevada
January Minutes], at http://www.leg.state.nv.us/70th/Interim/Studies/Business/Minutes/IM-Business-
20000107-2204.html; see also John G. Edwards, Committee Aims to Lure Firms, LAS VEGAS REV. J.,
Nov. 28, 1999.
319. Professor Stempel teaches at the William S. Boyd School of Law at the University of Nevada
at Las Vegas and prior to January 2000 had written considerably on the topic and related areas. See
Jeffrey W. Stempel, Two Cheers for Specialization, 61 BROOK. L. REV. 67 (1995); Jeffrey W. Stempel, A
More Complete Look at Complexity, 40 ARIZ. L. REV. 781 (1998); Jeffrey W. Stempel, Contracting Access
to the Courts: Myth or Reality? Boon or Bane?, 40 ARIZ. L. REV. 965 (1998).
320. Nevada January Minutes, supra note 318.
321. Id.
322. Id.
323. Id.
324. Id.
325. Legislative Commission’s Subcommittee to Encourage Corporations and Other Business En-
tities to Organize and Conduct Business in this State, Overview of Business Court Proposal, Work Session
Document, June 30, 2000.
326. The language that did not make it into the final rule stated: “Complex civil cases that include
the following: complaints primarily alleging professional negligence, primarily alleging products lia-
bility, constructional defects, public service commission matters, and civil trials that will last five weeks
or more.” Id.
186 The Business Lawyer; Vol. 60, November 2004

that cases come within the business docket if the matters at issue concern cor-
porate governance and shareholder derivative suits; trade marks or names; stat-
utory claims for trade secrets; securities actions; deceptive trade practices or in-
vestment securities; or “any dispute among business entities if the presiding judge
of the business court docket determines that the case would benefit from en-
hanced case management.”327 Rules 1.61(a)(1)–(3) in the Las Vegas Court are
virtually the same, though Rule 1.61(a)(2) expressly includes U.C.C. claims,
whereas Rule 2.1(b) does not.328
Like Washoe County Rule 2.1(b), the Eighth Judicial District’s Rule 1.61(a)(3)
includes within the Las Vegas Business Court’s jurisdiction: “Disputes between
two business entities where the court determines that the case would benefit from
enhanced case management.”329 Rules 2.1.1(c) and 1.61(a)(3) thus broaden the
range of potential case types. The practical result of this type of rule is to sub-
stantially enlarge the nature of cases that are prosecuted in the Business Court.330
As of June 7, 2003, a detail summarizing pending cases in the Reno court shows
the following types of cases: anti-trust, complex class action, building and con-
struction, construction defect, commercial instrument, contracts, defamation, em-
ployment contract, fraud, guarantee, liens, landlord/tenant, sale contract, specific
performance, stockholder suits (the largest number of cases by type), U.C.C., and
unfair competition.331 Las Vegas’ Business Court has heard such matters as trade-
mark actions, shareholder disputes and business to business litigation.332
Initially, the Business courts were not expected to have full calendars so the
business judges could also hear non-business cases.333 In 2001, Las Vegas’ Busi-
ness Court had 177 filings and thirty-three dispositions.334 In 2002, there were
155 filings and eighty-six dispositions; and through September 19, 2003 there
were 144 filings and ninety-eight dispositions.335 Through the first two years and

327. NEV. W.D.C.R. 2.1. See Appendix A, infra pp. 246–47. The Civil Cover sheet for cases filed
in Reno includes a separate section for requesting a Business Court designation, which includes cate-
gories for certain statutory harms involving, e.g., commodities, securities, investments, deceptive trade
practices, and trademarks. It also includes a category of enhanced case management for business
disputes and a general category “Other Business Court Matters.” A party requesting the Business Court
must not only check one of these designations, but must also separately check off one of the case
types found earlier in the form.
328. NEV. E.J. D.C.R. 1.61; see also Appendix A, infra pp. 245–46.
329. Appendix A, infra p. 246.
330. Judge Adams Letter, supra note 311. Thus, it is certainly arguable that even if Rule 1.61(a)(2)
does not expressly include reference to the U.C.C., a U.C.C. case could be designated under Rule
1.61(a)(3); and in fact U.C.C. cases have been heard in Reno’s business court, as described immediately
below.
331. Detailed Pending Case Report for Reopened Cases as of June 7, 2003, provided by the Hon-
orable Brent Adams (on file with authors) [hereinafter Detailed Case Report].
332. Judge Porter Letter, supra note 314.
333. Sub-Subcommittee for the Examination of the Business Court and Business Laws, Presentation
Regarding the Supreme Court’s Task Force Examining the Business Court, Minutes of the Meeting of the
Legislative Commission’s Subcommittee to Encourage Corporations and Other Businesses to Organize
and Conduct Business in this State (May 30, 2000).
334. Eighth Judicial District Court, Business Court Summary, provided to the authors by the Hon-
orable Gene T. Porter (on file with authors).
335. Id.
The Creation and Jurisdiction of Business Courts in the Last Decade 187

almost nine months of the Las Vegas Business Court, there were 476 cases filed
and 217 cases reaching disposition; the rate of disposition increasing significantly
over time. As of June 7, 2003, there were fifty-seven open Business Court cases
in the Second Judicial District (Reno), with twelve of these being shareholder
derivative suits.336
The experience among attorneys appears positive. Reno’s Business Court Judge
is described as knowledgeable and prepared, and the general view is likely that
the results in Reno’s Business Court cases have been expeditious and handled
knowledgeably.337 Attorneys are using the program and not seeking to somehow
opt out.338 In his 2003 address to Nevada’s legislature, the Chief Justice observed
that the institution of the Business Court in Washoe County (Reno) has been one
factor in significant delay reduction.339
In Las Vegas, attorneys who often litigate business and commercial matters have
been very pleased with the new Business Court and find that the consistency
created in having a judge focused on business litigation provides them with a
comfortable alternative to federal court.340 This consistency arises from having a
judge who is continually developing in experience with commercial and business
cases, as well as developing in the practice of handling complex litigation.341 As
in Reno, the judge was described as thorough, prepared, bright, and respectful.342
Under Nevada’s Rules, counsel initially choose the business track,343 and that
choice typically stands.344 Either party can have the case assigned to the Business
Court.345 In determining whether to request that a case be heard by the Business

336. Detailed Case Report, supra note 331.


337. Telephone interview with John P. Fowler, Esquire (Sept. 4, 2003) (on file with authors). Mr.
Fowler is Chairperson of the Business Law Section of the Nevada Bar Association, practicing in Reno,
Nevada with Woodburn & Wedge. He was an Advisory Member of Subcommittee to Encourage
Corporations and Other Business Entities to Organize and Conduct Business in Nevada during the
period of the Legislative inquiry into whether establishing a business court should be part of that
Subcommittee’s mandate. See, e.g., Nevada January Minutes, supra note 318.
338. Id.
339. Chief Justice Agosti, Chief Justice Agosti Addresses Nevada Legislature, 11 NEV. LAW. 16 (Apr.
2003).
340. Telephone interview with Thomas F. Kummer, Esquire, Kummer Kaempfer Bonner & Renshaw
(Sept. 9, 2003) (on file with authors) [hereinafter Kummer Interview]. Mr. Kummer has been litigating
cases in Las Vegas for over thirty years; including business and commercial cases. He served for eight
years on the Ethics and Professional Responsibility Committee of the State Bar, three years as chair;
and he has been appointed by Nevada’s Supreme Court to act as a Supreme Court Settlement Con-
ference Judge.
341. Id.
342. Id.
343. EIGHTH JUD. DIST. R. 1.61(c) provides that “[e]ither party in a case may file a request in the
pleadings that a case be assigned as a business matter. If the request is made by the plaintiff, the case
will automatically be assigned to a full-time civil judge assigned to business matters.” Reno’s Rule
2.1.3 similarly provides “A party in an action assigned to another department of the court may request
that the action be transferred to the business court docket. Upon filing of such a request, the clerk
shall transfer the case file to the presiding judge of the business court docket who shall thereupon
determine whether to assume jurisdiction of the case.” SECOND. JUD. DIST. R. 2.1.3.
344. Kummer Interview, supra note 340.
345. Judge Porter Letter, supra note 314.
188 The Business Lawyer; Vol. 60, November 2004

Court, attorneys look to what sorts of matters are excluded by Rule 1.61 from
the Business Court’s jurisdiction, as much as to what the Rule includes.346
A plaintiff ’s request for a hearing is automatically assigned to a Business Court
judge, and a defendant’s suggestion that the case should be in the Business Court
results in the random assignment to a Business Court judge to make that deter-
mination.347 The final decision, however, does ultimately rest with the court.348
By including only appropriate Business Court cases, the court maintains its juris-
dictional objective; additionally permitting the judges to focus upon business law,
to apply it in the cases before them and to develop a more consistent body of
case law through their opinions in that focused substantive region of the law.349

IX. RHODE ISLAND SUPERIOR COURT BUSINESS CALENDAR


On April 17, 2001, through administrative order of the Presiding Justice of the
Rhode Island Superior Court, a Business Calendar was created for Providence and
Bristol Counties.350 Shortly thereafter, Rhode Island’s Chief Justice stated: “Thanks
to the leadership of Presiding Justice Joseph Rodgers, the Providence Superior
Court now conducts a Business Calendar under the direction of Judge Michael
Silverstein, which seeks to reinsure that such legal matters that have an effect on
jobs and the economy are dealt with quickly and efficiently.”351
Matters appropriate for Business Calendar assignment include breach of con-
tract, breach of fiduciary duty, fraud, misrepresentation, business tort, statutory
violations arising out of business dealings or transactions, U.C.C. transactions,
complicated commercial real property transactions, shareholder derivative ac-
tions, commercial class actions, commercial bank transactions, matters going to
the internal affairs or governance of businesses, business insolvencies and receiv-

346. Kummer Interview, supra note 340.


347. Judge Porter Letter, supra note 314.
348. Id. See EIGHTH JUD. DIST. R 1.61(d)
The court shall decide whether a case is or is not a business matter and that decision shall not
be appealable by any appeal nor reviewable upon any writ; any matters not deemed a business
matter shall be randomly reassigned if it was originally assigned to the business court. If a case
was remanded to the business court for determination of whether it would be handled as a
business court matter and the business court deems it not to be a business court matter, that
case will be remanded back to the department to which it was originally assigned.
Appendix A, infra p. 246. See also SECOND JUD. DIST. R. 2.1.3.
A party in an action assigned to another department of the court may request that the action be
transferred to the business court docket. Upon filing of such a request, the clerk shall transfer
the case file to the presiding judge of the business court docket who shall thereupon determine
whether to assume jurisdiction of the case. The decision of the presiding judge of the business
court docket to accept or decline jurisdiction of the action is final, and is not appealable nor
reviewable upon any petition for extraordinary relief.
Appendix A, infra p. 247.
349. Judge Porter Letter, supra note 314.
350. Administrative Order No. 2001-9, State of Rhode Island and Providence Plantations, Apr. 17,
2001 [hereinafter Rhode Island Order]. See Appendix A, infra pp. 271–72.
351. Remarks of Chief Justice Frank J. Williams Supreme Court of Rhode Island to the Rhode
Island Bar Association Annual Meeting June 8, 2001, 49 R.I. BAR J. 5 (2001).
The Creation and Jurisdiction of Business Courts in the Last Decade 189

erships.352 “Simple collection matters, declaratory judgment proceedings with re-


spect to insurance coverage, confirmation or vacation of arbitration awards, and
general landlord and tenant issues shall not be assigned to the Business Calendar.”353
No matter can be finally assigned without the agreement of the Business Cal-
endar Justice.354 There is no requirement that the case be complex, but the cases
on the Business Calendar tend to be more complicated.355 In the usual Superior
Court action, the same case could have a different judge for motions, special
causes such as TROs and for trial; whereas there is a single judge for all matters
on the Business Calendar.356
In line with the goal of expeditious treatment of cases, the Business Calendar
Justice can require that the parties utilize non-binding mediation.357 The Business
Calendar’s Case Opening Sheet includes questions as to whether the parties have
made efforts at mediation, arbitration or other dispute resolution mechanism.358
Justice Silverstein has referred cases to attorneys for mediation.359 He has also
referred mediation matters to accountants and retired business people who may
be particularly suited to helping the parties resolve their differences.360 He has
found some substantial success in using these non-lawyers in the proper case,
e.g., in a shareholder valuation dispute.361
As of July 3, 2003, there had been a total of 440 business calendar cases, of
which 261 remained pending, with 179 reaching disposition.362 Other than in-
352. Rhode Island Order, supra note 350. This last category reflects a unique aspect of Rhode
Island law concerning state court insolvency proceedings, all of which go on the Business Calendar.
Telephone interview with Judge Michael A. Silverstein ( June 26, 2003) (on file with authors) [here-
inafter Judge Silverstein Interview].
Rhode Island’s Superior Court receivership proceeding has experienced remarkable growth, and
more importantly, unquestioned success in the last few years. The receivership proceeding . . .
has evolved into a flexible, legal mechanism by which a stockholder and/or creditor may preserve
the assets of a troubled business, including the business’ going concern value, for the benefit of
all of the company’s creditors and equity holders.
Richard L. Gemma, Rhode Island Superior Court Receiverships—Opportunities & Recent Developments,
51 R.I. BAR J. 25 (2003).
As lawyers have recognized the utility of the receivership proceeding, the Superior Court has
recognized the need to expand its mentoring program for prospective receivers . . . . All receiv-
erships in Providence County fall under the auspices of the Providence Superior Court’s business
calendar. . . . Recently, the Honorable Superior Court Judge Michael A. Silverstein has reenergized
the receivership mentor program through the business calendar of the Providence Superior Court.
Id.
353. Rhode Island Order, supra note 350.
354. Id. This role has been served by the Honorable Michael A. Silverstein since the Business
Calendar’s inception. Judge Silverstein meets with counsel to determine placement on the Calendar.
Judge Silverstein Interview, supra note 352.
355. Judge Silverstein Interview, supra note 352.
356. Id.
357. Id.
358. State of Rhode Island Superior Court, Business Calendar Case Opening Sheet (on file with
The Business Lawyer, University of Maryland School of Law).
359. Judge Silverstein Interview, supra note 352.
360. Id.
361. Id.
362. State of Rhode Island and Providence Plantations, Rhode Island Judicial Systems and Sciences,
Business Cases by Case Type ( July 3, 2003), provided by the Honorable Michael A. Silverstein (on
file with authors).
190 The Business Lawyer; Vol. 60, November 2004

solvency matters, there were sixty-five filings between June 1, 2001 and December
31, 2001; there were eighty-six new filings in 2002 and thirty-three new filings
between January 1, 2003 through July 3, 2003 during 2003.363
From the Business Calendar’s inception through July 3, 2003, there had been
160 business insolvencies and receiverships on the Business Calendar, of which
seventy-two were pending at the time the Calendar began operation, and seventy-
six of which have reached disposition.364 There were 176 breach of contract cases
during that time, forty-nine of which were pending and sixty-two of which have
reached disposition. There were fifteen business organizations matters, three of
which were pending and seven of which have reached disposition; seven com-
mercial bank transactions, three of which were pending; five commercial class
actions, three of which were pending and three of which have reached disposition;
twenty commercial real property cases, twelve of which were pending and five
having reached disposition; forty-two other business actions, twenty of which
were pending and twenty of which have reached disposition; three in the category
of other civil actions; two shareholder derivative actions, one of which has reached
disposition; and ten U.C.C. cases, four of which were pending at the time of the
Business Calendar’s inception, five having reached disposition.365

X. MARYLAND’S CIRCUIT COURT BUSINESS AND TECHNOLOGY


CASE MANAGEMENT PROGRAM
A. THE CREATION OF MARYLAND’S BUSINESS AND
TECHNOLOGY CASE MANAGEMENT PROGRAM
Through legislation, Maryland’s General Assembly created the Maryland Busi-
ness and Technology Task Force “to consider the feasibility of establishing a spe-
cialized court function within Maryland’s circuit courts to adjudicate business and
technology disputes.”366 The Task Force included members of the judiciary, state
house and senate, bar association, business community, and academic commu-
nity.367 In describing the background for its creation, the Task Force focused on
the rapid and intense growth of cutting edge technologies as making up a vital
part of Maryland’s economy. Creating a business and technology program was
part of an effort to overcome the perception that Maryland was anti-business, in
the hope of encouraging technology companies to locate in Maryland.368
363. Id.
364. Id.
365. Id.
366. Maryland Task Force Report, supra note 71, at 1. This Report was submitted to Chief Judge
Robert M. Bell of Maryland’s Court of Appeals on December 1, 2000. Final Report, Implementation
Committee, Conference of Circuit Judges, Maryland Business and Technology Case Management Program,
at 1 (Dec.1, 2000) [hereinafter Maryland Implementation Report]. The Court of Appeals is Maryland’s
highest court. Her trial courts of general jurisdiction are the circuit courts. There are eight circuit
courts covering Maryland’s twenty-three counties and Baltimore City. See Maryland Circuit Courts, at
http://www.mdarchives.state.md.us/msa/mdmanual/31cc/html/cc.html.
367. Maryland Task Force Report, supra note 71, at 1.
368. Id.; see also Maryland State Bar Association, Issue: Business and Technology Court, 2003 State
Legislative Program, at 92 (“A business court would make Maryland a more attractive state for resident
businesses to stay and for corporations in other states and countries to relocate.”) (on file with The
Business Lawyer, University of Maryland School of Law).
The Creation and Jurisdiction of Business Courts in the Last Decade 191

The Task Force’s objective was to consider the feasibility of not simply creating
a specialized court, but of establishing “a specialized court function to effectively
and efficiently administer business and technology disputes.”369 Maryland ob-
served a move towards specialized business courts in other states that improved
efficiency and helped overcome perceptions that business cases were unsatisfac-
torily handled; the Task Force recognized that the additional concept of a tech-
nology court “to specialize in the administration of disputes involving complex
technology issues” would be something new.370
Though the Task Force was a legislative creation, implementing the proposals
for this new court function was up to Maryland’s highest court, the Court of
Appeals.371 Thus, the Business and Technology Program within the circuit courts
was ultimately implemented via the promulgation of court rules. The Task Force
specifically recommended the creation of a state-wide Business and Technology
Case Management Program in the existing circuit courts, rather than the creation
of a separate Business and Technology Division in the circuit court.372 An Imple-
mentation Committee was formed consisting of one judge from each of Maryland’s
judicial circuits, which in turn established working groups to study and develop
the different aspects of creating the Business and Technology Program.373
The Implementation Committee developed what is now Maryland Rule 16-
205, establishing the Business and Technology Case Management Program, with
language uniform to each Circuit Court.374 In addition, there were detailed rec-
ommendations on case management, judicial education, ADR (including stan-
dards, education, training, and compensation), and the extensive use of technol-
ogy in the program’s operation.375

B. CASES HEARD IN THE BUSINESS AND TECHNOLOGY CASE


MANAGEMENT PROGRAM
Maryland Rule 16-205 does not provide a specific list of cases by type in de-
termining what cases come within the Business and Technology Court Manage-
ment Program purview.376 The assigning judge’s goal, per Rule 16-205(c), is to
determine whether the action presents “commercial or technological issues of such
a complex or novel nature that specialized treatment is likely to improve the
administration of justice.”377 This comports with the recommendation of the

369. Maryland Task Force Report, supra note 71, at 2.


370. Judge Steven I. Platt, Vice-Chairman, Business and Technology Task Force, Remarks on Business
and Technology Court Task Force, Nov. 16, 2000, at 5 [hereinafter Judge Platt Remarks].
371. Id. at 3; Maryland Implementation Report, supra note 366, at 1.
372. Judge Platt Remarks, supra note 370, at 7–8.
373. Maryland Implementation Report, supra note 362, at 1–2. This ultimately included over 150
people. Id.
374. Id. at 1–2.
375. See generally id.
376. Maryland’s Rule includes some language taken from North Carolina’s business court rules.
See Court of Appeals Standing Committee on Rules of Practice and Procedure, Minutes of Meeting of
Rules Committee, Oct. 2, 2001, at 16–17 [hereinafter October Minutes].
377. Id. at 14.
192 The Business Lawyer; Vol. 60, November 2004

Maryland Task Force that the court be “flexible” in assigning cases.378 The language
of Rule 16-205(c) includes a seven factor list designed to measure the entire nature
of a case in determining suitability for inclusion in the Business and Technology
Program.379 The judges look to substantive legal issues (“whether business or
technology issues predominate over other issues presented in the action”), and
case management and complexity issues (“the anticipated nature and extent of
pretrial discovery and motions, . . . the degree of novelty and complexity of the
factual and legal issues presented, . . . and . . . the willingness of the parties to
participate in ADR procedures.”)380 The nature of the relief requested is also
considered.381
The Maryland Task Force Report had recommended that certain types of cases
be presumptively included or excluded from the new court.382 Cases principally
focusing on the following areas, among others, would have been presumptively
included under the Task Force Report: technology development; computer soft-
ware agreement disputes; Internet disputes; technology and biotechnology licens-
ing; internal business affairs; breach of contract and fraud in relation to business
dealings; shareholder derivative suits and commercial class actions; commercial
bank transactions; declaratory judgment actions involving insurers; trade secret
and non-compete clauses; business torts; violations of Maryland’s Trade Secret or
Unfair and Deceptive Trade Practices Act; commercial real property disputes; pro-
fessional malpractice claims; state law anti-trust violations; and securities law
claims.383
378. Maryland Task Force Report, supra note 71, at 8.
379. MD. R. 16-205(c) provides in part that a case may be assigned to the Program after a judicial
determination “that the action presents commercial or technological issues of such a complex or novel
nature that specialized treatment is likely to improve the administration of justice.” That Rule includes:
[f ]actors that the judge may consider in making the determination[,which] include: (1) the nature
of the relief sought, (2) the number and diverse interests of the parties, (3) the anticipated nature
and extent of pretrial discovery and motions, (4) whether the parties agree to waive venue for
the hearing of motions and other pretrial matters, (5) the degree of novelty and complexity of
the factual and legal issues presented, (6) whether business or technology issues predominate
over other issues presented in the action, and (7) the willingness of the parties to participate in
ADR procedures.
Id.
380. Id.
381. The Maryland Task Force Report states that the “Program should be reserved for cases where
there is a substantial amount in controversy.” Maryland Task Force Report, supra note 71, at 8. The
draft version of that Report stated that in cases seeking monetary relief only, the amount sought should
exceed $75,000, but the final report set the figure at $50,000. In the Rule as finally promulgated,
there is no dollar minimum. This “nature of relief ” factor apparently includes whether the plaintiff
has asked for a jury. October Minutes, supra note 376, at 19.
382. Maryland Task Force Report, supra note 71, at 8. The Implementation Committee ultimately
did not find this format workable. Telephone interview with the Honorable Steven I. Platt, Maryland
Seventh Circuit Court (Sept. 8, 2003) (on file with authors) [hereinafter Judge Platt Interview]. Judge
Platt was the Task Force vice-chair, Implementation Committee chair and is currently head of the
Designated Judges Committee which includes Program judges from across the state.
383. In total, the Task Force list included fifteen categories. During the early stages of the study
process, “[t]he list of what is and is not included was debated heavily and is fairly broad. . . . [T]he
Implementation committee felt that the more specific criteria in the plan should be uniform throughout
the State. Standards include what cases are and are not admitted, but administrative judges should
not be locked in.” October Minutes, supra note 376, at 22.
The Creation and Jurisdiction of Business Courts in the Last Decade 193

These presumptive and exclusive lists, however, were not included in the final
rule; and they are not officially part of the measure for accepting or rejecting cases
into the Business and Technology Program.384 As set forth above, Maryland’s new
rule requires continuing judicial education.385 The judicial education require-
ments provide a detailed list of specific areas for judicial study. While this list is
not set out as a jurisdictional statement, it does indicate at least some types of
cases that will likely be heard, since they are part of the subject matter of the
judicial education program.
The judicial education subject areas in the Implementation Report include,
among others: the forms of business organization; piercing the corporate veil;
funding and capitalization; shareholder distribution; director and officer liability;
derivative suits; shareholder and director inspection rights; special issues in
closely held corporations; mergers, buyouts, takeover, spin-outs; non-compete
agreements; non-solicitation and confidentiality agreements; business valuations;
rights of majority and minority business owners; taxation; antitrust; duties of
officers, directors, or managers; software design and manufacture; Internet; eco-
nomics of software networks and markets; biotechnology; telecommunications;
electric power; intellectual property law; the Maryland Computer Information
Transactions Act; the Maryland Electronic Transactions Act; and the Maryland
Commercial Code.386
The Business and Technology Program is a part of Maryland’s circuit courts
throughout the state, and the judges in that track meet quarterly.387 Among other
things, they discuss the criteria for accepting or rejecting cases from the Program
and seek consistency in application.388 Judge Steven I. Platt, Chair of Maryland’s
Designated Judges Committee, and Supervisory Judge for the Program in Prince
George’s County, had yet to hear any protest on a case being accepted or rejected
in the Program through the Program’s first nine months.389
Fulfilling one Task Force goal, the Business and Technology Case Management
Program has a website.390 The publication of informed and consistent opinions,

384. Judge Platt Interview, supra note 382. Speaking as a panelist during the November 7, 2003
Symposium, “Taking Care of Business: Business & Technology Courts in the Twenty-First Century,”
held at the University of Maryland School of Law, Judge Platt stated that judges would likely consider
these case types to have some relevance in determining whether a case should be heard in the new
Program. The authors were co-panel members.
385. The Implementation Report addressing the Maryland Task Force recommendations stated that
it was addressing “specialized judicial education in both substantive business law and technology
issues, as well as techniques for efficiently managing specialized business technology cases and dockets
[as] critical to an effective Business and Technology Case Management Program.” Maryland Imple-
mentation Report, supra note 366, at 14.
386. Id. at 14–17.
387. Judge Platt Interview, supra note 382. This comports with the Implementation Report that
encouraged judges to meet regularly to share experiences in the same way that physicians meet in
regular “morbidity and mortality” meetings to discuss their significant cases. Maryland Implementation
Report, supra note 366, at 17. This is in line with the Delaware Chancery Court practice. Maryland
Task Force, supra note 71, Appendix B, at 23.
388. Judge Platt Interview, supra note 382.
389. Id.
390. Maryland Business and Technology Case Management Program, at http://www.courts.state.
md.us/businesstech/index.html. Judge Platt Remarks, supra note 370, at 11.
194 The Business Lawyer; Vol. 60, November 2004

which can establish a basis for planning action, was an important issue raised in
the Business and Technology Program’s creation.391 Program opinions can be
found on the website,392 and in Westlaw’s database.393 In addition, the publication
of opinions provides a form of communication between the various Program
judges.394 As stated on the website:

In order to provide lawyers and litigants with a growing body of predictive


information at the trial court level to advise clients on likely rulings and to
encourage collegiality and consistency among judges, [it was] recommended
that an opinion database of judicial opinions arising from cases in the pro-
gram be created.395

XI. BUSINESS COURT SUBDIVISION OF THE ORANGE COUNTY,


FLORIDA CIRCUIT COURT
By administrative order, the Presiding Judge of the Circuit Court in Orange
County, Florida, which includes Orlando, established a Business Court Subdivi-
sion within the Court’s Civil Division, effective January 2, 2004.396 This was pre-
ceded by the Ninth Judicial Circuit Business Court Committee’s study and rec-
ommendation that a business court be created.397
The Order’s prefatory language reflects certain principles behind the growth of
business courts. These include the premises, among others, that:

(i) “specialization within the legal profession has resulted in the more
efficient delivery of high quality legal services in complex matters;”398
(ii) within that Florida Circuit Court, there has been a “long recognized
. . . need for specialized courts to deal effectively with diverse matters
including criminal law, juvenile justice, domestic relations, probate and
drugs;”399

391. Judge Platt Remarks, supra note 370, at 10.


392. Maryland Business and Technology Case Management Program, Published Opinions, at http://
www.courts.state.md.us/businesstech/opinions.html.
393. See Westlaw Maryland Cases database, MD-CS.
394. Maryland Business and Technology Case Management Program, Submitting an Opinion for
Website Posting, at http://www.courts.state.md.us/businesstech/protocol.html#transform. Published
opinions should have factual and legal analysis and will encompass rulings on such matters as dis-
covery motions, dispositive motions, conclusions of fact and law in bench trials, and decisions on
injunctive actions. Id.
395. Maryland Business and Technology Case Management Program, Published Opinions, at http://
www.courts.state.md.us/businesstech/opinions.html. “Opinions published on this site will contain fac-
tual or legal analysis that is useful to other judges, lawyers, and litigants interested in the Program.”
Id.
396. Administrative Order No. 2003-17, In the Circuit Court of the Ninth Judicial Circuit in and
for Orange County, Florida, at 13, June 26, 2003. See Appendix A, infra pp. 231–38.
397. Id.
398. Id. at 231.
399. Id.
The Creation and Jurisdiction of Business Courts in the Last Decade 195

(iii) the “litigation and resolution of complex business, corporate and com-
mercial disputes has become an area of specialization within the legal
profession;”400
(iv) “a court that consistently hears business, corporate and other com-
mercial disputes can be expected to develop expertise, experience and
knowledge enabling it to perform its functions more proficiently, rap-
idly and confidently;”401
(v) “a business Court will provide consistency and predictability to liti-
gants and counsel;”402
(vi) “the more efficient handling of these cases will free judicial resources
to handle other important matters;”
(vii) “the decisions in these cases oftentimes impact not only the litigants
but numerous persons throughout our community including employ-
ees, shareholders, partners, creditors and suppliers;”403 and
(viii) “the establishment of a Business Court may become one more factor
in helping our community to attract new businesses that are looking
to re-locate.”404
The new Business Court Subdivision’s jurisdiction is most similar to that found
in New York and Philadelphia, and includes a broad range of disputes.405 While
there were earlier discussions of including complexity as an express part of the
new court’s jurisdiction,406 the Order does not include a separate finding of com-
plexity as a jurisdictional requirement.407

XII. OKLAHOMA BUSINESS COURT


In September 2003, Oklahoma state legislators conducted hearings on whether
to establish a business court in Oklahoma.408 Proponents believed that in estab-
lishing a business court, Oklahoma would “get on the leading edge” and would
be perceived as progressive.409 Further, in having experienced business judges

400. Id. at 232.


401. Id.
402. Id.
403. Id.
404. Id.
405. Id.
406. Becky Knapp, Business Court on the Docket: Orange County Will be First in Florida to Offer
Complex Litigation Court, ORLANDO BUS. J., Mar. 24, 2003.
407. There have been efforts to create similar programs in the Eleventh Judicial Circuit, which
includes Miami, and the Seventeenth Judicial Circuit, which includes Ft. Lauderdale. Telephone in-
terview with Michael J. Higer, Esquire, Mintz, Truppman, Clein & Higer, P.A. in Miami (Sept. 11,
2003) (on file with authors). Mr. Higer is co-chair of the Business Courts Committee of the Business
Law Section of the Florida State Bar, and his efforts contributed to the creation of the business court
in the Ninth Judicial District.
408. Marie Price, Lawmaker Touts Business-Only Court, TULSA WORLD, Sept. 19, 2003, at 16; Ray
Carter, Legislators Urged to Create “Business Courts,” J. RECORD, Sept. 19, 2003.
409. Chad Kile, Lawmaker Proposes Specialized Business Court; Creation Could Lure Companies, Nur-
ture Economic Growth, OKLAHOMAN, Oct. 4, 2003, at 1-B.
196 The Business Lawyer; Vol. 60, November 2004

developing a reliable body of law, Oklahoma would become more competitive in


the global competition for business.410
In March 2004, Oklahoma’s House of Representatives approved The Business
Court Act, authored by Representative Lance Cargill.411 On May 27, 2004, a joint
Oklahoma House and Senate Conference Committee included the creation of a
business court in ongoing legislative efforts, after revising the original bill.412 On
May 28, 2004, after adoption by the Oklahoma House and Senate, the Governor
signed the new law.413 As enacted, the new law provides for the Oklahoma Su-
preme Court to create business court divisions in cities with populations greater
than 300,000; and to promulgate rules and jurisdictional requirements for such
court divisions within the state’s district (trial) courts.414

XIII. MICHIGAN BUSINESS AND TECHNOLOGY COURTS415


Michigan presently has two, somewhat different, approaches to business and
technology courts, although neither is operating at this time. The Michigan leg-
islature has passed a statute creating a technology court,416 called the Cyber Court,
and the Michigan Supreme Court has published proposed court rules governing
proceedings in the Cyber Court. The Cyber Court is awaiting a final decision on
funding.417

410. Id.
411. Oklahoma House of Representatives Media Division, House Approves Legislation to Create Busi-
ness Courts, Mar. 11, 2004, at http://www.lsb.state.ok.us/house/news6684.html.
412. Ryan McNeil, House Approves Lawsuit Reform, OKLAHOMAN, May 28, 2004.
413. The new law was adopted by the Oklahoma House on May 27, 2004, the Senate on May 28,
2004, and signed by the Governor on May 28, 2004. See 2003 OK H.B. 2661, First Session of the
49th Legislative Session, House Bill 2661, available at 2003 Bill Tracking OK H.B. 2661, http://
www.lexis.com.
414. The new law provides that:
A. The Oklahoma Legislature finds that, due to the complex nature of litigation involving
highly technical commercial issues, there is a need for a court in Oklahoma’s most populated
counties with specific jurisdiction over actions involving such commercial issues.
B. The Supreme Court is authorized to create a business court division within the district court
of any judicial district containing a municipality with a population in excess of three hundred
thousand (300,000), according to the latest Federal Decennial Census.
C. The Supreme Court shall promulgate rules for the establishment and jurisdiction of the
business court divisions.
2003 OK H.B. 2661, Oklahoma Second Session of the 49th Legislative Session, Sections 16 and 17,
enacted May 28, 2004, available at http://www.lexis.com.
415. This section on Michigan’s Cyber Court and efforts at creating a business court was chiefly
prepared by Diane L. Akers of Bodman, Longley & Dahling LLP in Detroit. Ms. Akers is the Chair of
the Business Court Ad Hoc and Business Court Executive Committees of the State Bar of Michigan’s
Business Law Section.
416. MICH. COMP. LAWS ANN. §§ 600.8011–.8029 (West 2004).
417. In late 2001, the Michigan House of Representatives and Senate passed a bill creating a Cyber
Court, which was to take effect as on January 9, 2002. Id. While there was initially funding for the
Cyber Court, that funding was placed on hold later in 2002 (an election year). Thereafter, the Michigan
Legislature passed an amended bill, modifying somewhat the provisions of the original Cyber Court
statute. For further history, see, e.g., Amy Lane Lansing, Lack of Funding Keeps Cyber-Court Offline,
CRAIN’S DETROIT BUS., July 15, 2002, at 12; What Other States Are Doing, DEL. L. WKLY., Feb. 5, 2003,
at 5; Kimberly Koscielniak and Brian Wassom, Practice Tips: Cyber Court, 82 MICH. BAR. J. 48 (2003).
The Creation and Jurisdiction of Business Courts in the Last Decade 197

The Business Law Section of the State Bar of Michigan has created a Business
Court Ad Hoc Committee, which has proposed that a pilot Business Court be
established in one or two circuit courts in Michigan. Three circuit courts have
expressed interest in exploring the issue. While there are differences between the
Cyber Court, as enacted, and a Business Court, as proposed, supporters of both
initiatives believe that the two are complementary and are working together to
achieve shared objectives.

A. MICHIGAN’S CYBER COURT


Under Michigan Compiled Laws section 600.8001(2), the Cyber Court has
several purposes, most of which relate to technology and Michigan’s economy:
(i) to establish judicial structures that help to revitalize Michigan’s economy; (ii) to
resolve business or commercial disputes with the expertise, technology, and effi-
ciency required in an information age economy; (iii) to assist the judiciary in
responding to technology; (iv) to establish a technology-rich system to serve the
judicial system in a global economy; (v) to maintain the integrity of the judicial
system while applying new technologies; (vi) to make Michigan attractive to
technology-driven businesses; (vii) to permit ADR to benefit from technology;
and (viii) to establish virtual courtrooms.418 All parties in Cyber Court case are
deemed to have waived the right to a jury trial.419

B. CYBER COURT JURISDICTION


The Cyber Court has concurrent jurisdiction with Michigan’s circuit courts over
“business or commercial disputes” in which the amount in controversy exceeds
$25,000.420 The Cyber Court also has jurisdiction over claims that are not com-
mercial or business disputes,421 as long as the case is “primarily” a commercial or
business dispute.422 Participation in the Cyber Court is entirely voluntary.423 Par-
ties, however, cannot by stipulation or agreement keep a case in Cyber Court if
the case does not belong there.424 If the case is not “primarily” a business or
commercial dispute, it may not be heard in the Cyber Court. The Cyber Court

418. MICH. COMP. LAWS ANN. § 600.8001(2) (2004).


419. Id. § 600.8013; see also § 600.8019, which provides, “An action in the cyber court shall be
heard by the judge without a jury.”
420. Id. § 600.8005(1). See Appendix A infra p. 244.
421. MICH. COMP. LAWS ANN. §§ 600.8005, 600.8011(3).
422. Id. § 600.8011(4).
423. Id. § 600.8007(1). A plaintiff may file an action in the Cyber Court Thereafter, any party,
including a defendant, a plaintiff against whom a counterclaim has been asserted, parties added by
motion and third party defendants may cause the case to be transferred from the Cyber Court to a
circuit court in which venue would be proper merely by filing a notice of transfer. Id. § 600.8011(1).
Procedurally, the proposed court rule is somewhat different in that it provides that a case “shall” be
removed or transferred to “the” (rather than “a”) circuit court in which venue is proper upon motion
filed by “the defendant.” MICH. COMP. LAWS ANN. § 2.712(A)(1) (proposed). A party having the right
to intervene in a matter pending in Cyber Court may also file a motion for removal to circuit court.
424. This is determined by the review called for by MICH. COMP. LAWS ANN. § 600.8011(2), (3).
198 The Business Lawyer; Vol. 60, November 2004

judge’s determination is final and may not be reviewed by the circuit court.425
The requirement of judicial review continues throughout the case.426
When it passed the amended Cyber Court statute, the Michigan Legislature
revised the definition of “business or commercial dispute.” Under the current
version of the statute, “business or commercial dispute means any of the following
actions”: (i) actions in which all parties are business enterprises; (ii) actions be-
tween a business enterprise and its owners, managers, employees, etc.; (iii) ac-
tions in which a party is a non-profit entity and the dispute arises from the
organization’s structure, governance, finances, etc.; and (iv) actions arising from
the sale, merger, organizational structure, governance, finances, etc. of a business
enterprise.427
The Cyber Court statute provides that the following kinds of disputes are in-
cluded within the definition of a “business or commercial dispute”: (a) disputes
involving technology, websites, etc.; (b) disputes over the internal organization or
governance of business entities; (c) contract disputes; (d) disputes over commer-
cial transactions, including bank transactions; (e) disputes over business or com-
mercial insurance; and (f ) disputes over commercial real property.428
The Cyber Court statute also excludes certain kinds of actions, including:
(a) personal injury or wrongful death actions; (b) product liability matters with
individual claimant(s); (c) family division cases; (d) probate proceedings; (e) pro-
ceedings involving estates or protected persons; (f ) criminal matters; (g) con-
demnation matters; (h) appeals from lower courts or administrative tribunals;
(i) enforcement of judgments; and ( j) landlord-tenant matters involving residen-
tial property.429

C. MICHIGAN’S EFFORT AT CREATING A BUSINESS COURT


At about the same time the Michigan legislature passed the first version of the
Cyber Court statute, the Business Law Section of the State Bar of Michigan created
the Business Court Ad Hoc Committee (the “Committee”), which was charged
with the responsibility to study and make recommendations whether Michigan
should establish some form of business court.430
From the outset, the Committee was aware that the Cyber Court statute had
been passed and that a Cyber Court, if established, would focus on business or
commercial disputes. The Committee also made early contact with supporters of

425. Id. § 600.8011(4) (2004).


426. Whenever parties or claims are added or deleted, the Cyber Court judge is required to again
review the pleadings to determine whether the case is “primarily a business or commercial dispute,”
either notifying the plaintiff to transfer the case or affecting the transfer under the statute. Id.
§ 600.8011(3).
427. Id. § 600.8005(3)(b). See Appendix A, infra pp. 244–45.
428. MICH. COMP. LAWS ANN. § 600.8005(4).
429. Id. § 600.8005(5).
430. See also State Bar of Michigan, Business Law Section, Business Court Ad Hoc Committee
Meeting, Report of Business Court Executive Committee, at 1 (Apr. 22, 2002), at http://www.bodman
llp.com/publications/articles/pdfs/BusinessCourtExecutiveCommittee.pdf.
The Creation and Jurisdiction of Business Courts in the Last Decade 199

the Cyber Court initiative to determine what synergies might be achieved and to
ensure that efforts were not being duplicated.431
The Committee views the purposes for a Business Court in Michigan to be:
(i) to enhance the consistency, predictability, and accuracy of decisions in business
cases, and (ii) to enhance the efficiency with which business cases are resolved
through pro-active case management, technology, and early ADR.432 The Com-
mittee also concluded that neither a new statute nor amendment to the existing
Cyber Court statute was necessary to achieve its goals for commercial litigation.433
Rather, the Committee has focused on the concept of assigning a sitting circuit
court judge to serve as a Business Court judge through the assignment power of
the chief judge of each circuit.434
The Committee also considered what kinds of cases should be heard in a Busi-
ness Court and concluded that, at least initially, the definition of commercial or
business dispute contained in the Cyber Court statute should be used. A Business
Court would require that damages exceed $25,000, the general requirement for
all civil cases filed in circuit courts in Michigan. In May 2003, the Business Law
Section Council agreed to fund some further exploration of a pilot Business Court
and, in particular, a review of the quantity of business litigation filed in each
county.435 The Committee then prepared a proposal for a pilot business court,
which has been presented to representatives of one of the metropolitan Detroit
counties.436 The matter is still under discussion. The Committee intends to con-
tinue to pursue its efforts to establish a Business Court in Michigan, regardless of
whether the Cyber Court is funded.

XIV. COLORADO AND GEORGIA


An extensive study was made in Colorado, ultimately leading to a recommen-
dation for the creation of a business court. For reasons discussed below, neither
a separate court division nor court track have been created. More recently, efforts
to study the feasibility of a business court in Georgia have been pursued with
some vigor. This result has produced a unique kind of study created by a con-
sulting firm engaged to make best practices recommendations to the Administra-
tive Office of Georgia’s Courts and its Supreme Court.437

431. During 2002 and 2003, the Committee conducted a number of meetings and study sessions
designed to gather information and explore how litigation of business cases could be improved. The
Committee also sought the views of various legal and business organizations to determine what would
best meet the needs of commercial litigators and their clients.
432. Report of Business Court Executive Committee, supra note 430, at 1.
433. Id.
434. The Committee believes that, while technological advances should be utilized where appro-
priate, electronic filing and appearances should be available but not, at this stage, mandatory. The
Committee has also considered the advantages of a system that would be entirely voluntary, but is
concerned that few cases would remain in the Business Court if the litigants can “veto” use of the
Business Court.
435. See supra note 415.
436. Id.
437. A private consultant was used to study London’s existing commercial courts to determine
methods of improvement. See infra Section XV.
200 The Business Lawyer; Vol. 60, November 2004

A. THE COLORADO GOVERNOR’S TASK FORCE ON CIVIL


JUSTICE REFORM
In 2000, the Governor’s Task Force on Civil Justice Reform issued its final
report, recommending the establishment of “a specialized business court system
within the existing Colorado courts to handle commercial cases more quickly, less
expensively, and with greater expertise.”438 The Task Force observed that there
was “rapid growth in Colorado’s commercial and professional services sectors,”
recognizing Colorado as a national leader in information technology with a con-
comitant growth in jobs in that sector.439 The recommended business court would
“be located within an existing District Court in the Denver metropolitan area.
Such a business court could develop the expertise and specialized procedures
needed to help Colorado attract and retain world-class employers and employees
alike.”440
The Final Report included a lengthier Report of the Committee on Business
Courts to the Governor’s Task Force.441 The Business Courts Committee stated
that “a well-functioning business community is dependent on an effective judi-
ciary equipped to handle the disputes of that community.”442 It stated that business
law expertise in judges would make them more adept at hearing commercial
cases.443 A specialized commercial court was particularly appropriate because such
cases are frequently complex and draw upon a body of law developed to address
the unique nature of commercial disputes; and that in the normal course of affairs
these cases can create judicial back log and run the risk on inconsistency in
result.444
It was ultimately determined that the number of expected business court cases
that could be generated in Denver could not justify the time and expense nec-
essary to establish a specialized business court; nor could the funding be obtained
for special tracking for business cases.445 Because of the depth and effort put into
the study, which those interested in business courts should read in full, its juris-
dictional criteria have been included for discussion in this paper even though
Colorado has not adopted a business court.

438. Governor’s Task Force on Civil Justice Reform, Executive Summary, Final Report of Governor’s
Task Force on Civil Justice Reform, at 2 (Sept. 6, 2000), at http://www.state.co.us/cjrtf/report/download/
executiv.doc.
439. Id.
440. Id. “More generally, and as detailed in the Report, Colorado should strengthen the ability of
all Colorado courts to resolve complex business disputes with less cost and reduced delay.” Id. Minutes
of the Business Court Committee’s meeting can be found at http://www.state.co.us/cjrtf/min/minutes.
htm.
441. Colorado Report, supra note 72.
442. Id.
443. Id.
444. Id.
445. Michael Becker, Businesses Praise Colorado Courts; Legal System Earns Recognition for Overall
Efficiency, J. ADVOC., Mar. 1, 2002; see also C.J. Mary J. Mullarkey, State of the Judiciary, Jan. 12, 2001,
Recent Selected “State of the Judiciary” Addresses Delivered by State Chief Justices, at http://www.abanet.org/
justice/pdf/speech01-02b.pdf.
The Creation and Jurisdiction of Business Courts in the Last Decade 201

The Colorado Business Court Committee recommended the following types of


cases for a business court track:
a. The rights, duties, or liabilities of equity owners, managers, or agents of any
form of business entity;
b. The formation, sale or purchase, or merger or conversion of any form of
business entity;
c. Conduct invoking antitrust laws or law governing unfair competition or
interference with business or contractual relations; or agreements or ar-
rangements among businesses, or between businesses and their agents or
employees restraining competition;
d. Commercial transactions not involving a consumer party; or
e. Intellectual property.446

B. THE GEORGIA FEASIBILITY STUDY


Funded by the Corporate Counsel, Business Law and Technology Sections of
the Georgia State Bar, a committee was formed to study the creation of a business
court in Georgia.447 This effort gained the support of the Administrative Office of
the State Courts of Georgia. Working with the consulting firm AEQUITAS, Inc.,
a Feasibility Study with specific recommendations has been created and presented
by the Administrative Office of the Courts to Georgia’s Supreme Court.448 The
study recommends the creation of a business court along the lines of North Caro-
lina’s Business Court.449 It also recommends that the court be sponsored state-
wide, but functionally be county-based; and that the effort begin with pilot pro-
gram(s) in a county or counties with sufficiently high business volume.450 The
Supreme Court is supportive of the effort, and the Georgia State Bar itself has
become increasingly interested in assisting in creating such a court program.451
The Georgia Study itself includes an analysis of other states’ business courts
and a recommendation for best practices for a business court in Georgia.452 The

446. See Appendix A, infra p. 229.


447. The information in this paragraph was provided in an interview with Raymond Fortin, Esquire,
General Counsel of SunTrust Banks, Inc., on October 1, 2003 and later confirmed by Mr. Fortin to
the authors. Mr. Fortin is one of the driving forces behind developing a business court in Georgia,
and he was one of the attorneys in the Wachovia Bank takeover case in North Carolina’s Business
Court, which is one of that Court’s most nationally prominent cases to date.
448. AEQUITAS, Inc., Georgia Feasibility Study, supra note 120.
449. Id.
450. Id. at 8.
451. See Chief Justice Norman S. Fletcher, State of the Judiciary Address, Jan. 31, 2003, at http://
www.georgiacourts.org/aoc/statejudiciary.html (the court is “considering the feasibility of a pilot project
to expedite business litigation in our courts. The idea has been proposed by the Corporate Law Section
of the State Bar and would be modeled on a similar effort in North Carolina. Mindful of budgetary
constraints, we are looking for financial resources outside the state’s budget.”). Highlights from the
Executive Committee of the Technology Law Section, TECH. L. ST. B. GA., Winter 2002, at 5. Summary of
Executive Committee Meeting on February 6, 2003, TECH. L. ST. B. GA., Spring 2003, at 6. (Now com-
plete, that feasibility study proposes a three year pilot program based on North Carolina’s business
court).
452. AEQUITAS, Inc., Georgia Feasibility Study, supra note 120. The authors of AEQUITAS, Inc.
Georgia Feasibility Study have since published a more general paper on best practices for business
courts nationally. Tim Dibble and Geoff Gallas, Best Practices in U.S. Business Courts, COURT MANAGER,
Volume 19, Issue 2, 2004, at 25.
202 The Business Lawyer; Vol. 60, November 2004

Study lists and analyzes twelve different “functional categories” in which recom-
mendations are made, including, e.g., objectives to be achieved, case types, and
judicial management.453 It provides a somewhat distinct perspective in that it was
created by professional court consultants.
The first category analyzed, “Core Business Court Objective,” is critical in de-
termining the shape of the remaining recommendations. The summary descrip-
tion set forth in the report, encapsulating the proposed objectives into a maxim
is, “[a]ssigns business cases to specialized judges in order to manage them more
effectively and expeditiously and to more efficiently use judicial resources both
within the business court and in the court system as a whole.”454 As to the case
types assigned, a complex North Carolina Business Court type jurisdiction is
recommended to achieve this goal for Georgia: “Only complex business cases and
business cases with novel legal precedents are assigned to a business court.”455
In his January 16, 2004 State of the Judiciary Address, Georgia Chief Justice
Fletcher stated that “[t]he proposed pilot project for a business court will soon
be on the table for consideration.”456

XV. SOME INTERNATIONAL COURTS457


England has numerous specialized courts, including the Commercial Court,
Admiralty Court, and the Technology and Construction Court in the Queens
Bench Division; and the Patents and Companies Court in Chancery. These courts
were the subject of a March 2001 Feasibility Study by Cap Gemini Ernst & Young
(“CGEY”) on modernizing London’s commercial courts.458 The purpose was “to
evaluate the business case for a new commercial court handling a wide range of
high value commercial litigation and housed in a separate building. Such a project
was seen as a means of further enhancing the position of London as a provider

453. Id. at 8.
454. Id. Each summary point is developed at length later in the Study.
455. Id. at 12. By contrast, Colorado’s Business Committee found that: “Defining what constitutes
a ‘commercial case’ is fundamental to the operation of a business court. While the court will be
particularly suitable for complex cases, commercial cases of all levels of complexity will benefit from
adjudication by experienced business jurists.” Colorado Report supra note 72, at 12.
456. Chief Justice Norman S. Fletcher, State of the Judiciary Address, Jan. 16, 2004, available at
http://www2.state.ga.us/Courts/Supreme/2004_judiciary_speach.htm; State of the Judiciary Address:
Georgia Courts at Work, GA. CTS. J., Feb. 2004, at 3, available at http://www.georgiacourts.org/aoc/
publications/CJ-Feb-2004.pdf. The business court proposal was to be presented to the State Bar’s
Board of Governors for consideration in early November 2004. Steven H. Pollak, Fulton Moves Forward
with Plans for New Business Court, FULTON COUNTY DAILY REPORT, Oct. 8, 2004, at 1.
457. We are not including a lengthy history of other nations’ commercial court programs. The
following discussion sets forth some details of business courts in England, Ireland and Toronto, Can-
ada. There are parallels with the creation of American business courts which adduce the presence of
similar causes and objectives. This reflects the global nature of conditions that have impelled the
creation of commercial courts.
458. See Modernisation of the Commercial Court—Consultation Paper, at 1.4 and Annex B (Dec. 10,
2001), available at http://www.courtservice.gov.uk/cms/media/consult_paper_commscrt(1).pdf [here-
inafter Consultation Paper].
The Creation and Jurisdiction of Business Courts in the Last Decade 203

of legal services to the international business community.”459 Shortly after the


CGEY Report was published, “the Lord Chancellor announced that he accepted
the consultants’ proposals and studies had already begun into the manner in
which they could be implemented; the objective of the decision to modernise
was to ‘make sure that London maintains its position as the premier centre for
settling commercial disputes in the future.’”460 The Commercial Court’s juris-
diction includes:
any claim arising out of the transaction of trade and commerce and includes
any claim relating to—(a) a business document or contract; (b) the export
or import of goods; (c) the carriage of goods by land, sea, air or pipeline;
(d) the exploitation of oil and gas reserves or other natural resources; (e)
insurance and re-insurance; (f ) banking and financial services; (g) the opera-
tion of markets and exchanges; (h) the purchase and sale of commodities;
(i) the construction of ships; ( j) business agency; and (k) arbitration.461
Ireland has recently created a Commercial Division of the High Court. Its ju-
risdiction includes proceedings of:
a commercial nature involving claims of at least €1m. The type of proceedings
covered by the definition include disputes over a business document or
contract, the purchase and sale of commodities, the import or export of
goods and the carriage of goods by land, sea, air or pipeline. In addition,
proceedings under the Arbitration Acts, Intellectual Property disputes and
Judicial Review cases involving a substantial commercial law dimension also
fall within the jurisdiction of the Court.462
The establishment of a Commercial Court had been recommended, “as a matter
of urgency” by the Committee on Court Practice and Procedure.463 Prior to the
commercial court’s creation there were growing complaints about delays, ineffi-
cient pre-trial practices, and a lack of specialist judges for complex commercial
matters; and the government recognized “the need to provide an infrastructure
which supports every aspect of doing business in Ireland; including the Courts.”464

459. The Commercial Court/The Admiralty Court 2001–02, Report on the Year Ending 30th Septem-
ber 2002 ¶ 53(a), available at http://www.courtservice.gov.uk/using_courts/guides_notices/notices/comm/
commreport_02.htm.
460. Id. ¶ 53(b).
461. THE ADMIRALTY & COMMERCIAL COURTS GUIDE, at B1.1 (6th ed. 2002), available at http://
www.courtservice.gov.uk/using_courts/guides_notices/notices/comm/guide/com_crt_guide.htm#cases.
462. See Minister for Justice Michael McDowell T.D., Equality & Law Reform Address; The Com-
mercial Court and Mediation Conference (Mar. 24, 2004), available at http://www.justice.ie/80256
E01003A02CF/vWeb/pcJUSQ5XLD4H-en.
463. Committee on Court Practice and Procedure, 27th Interim Report, A Commercial Court in
Ireland, Establishing Connections to Domestic and International Arbitration Centers, The Courts of e Gov-
ernment—Meeting the e Commerce Challenge (Feb. 27, 2002), available at http://www.courts.ie/press.
nsf / a3b752e69d6a613e802568350067c46e / 7755e7355444367480256b6d0055e1e0?OpenDocument
(“[t]he Committee recommends that a pilot project Commercial Court be developed in Dublin as a
matter of urgency.”). Id.
464. William Fry, Solicitors, A Commercial Court in Ireland, at http://www.williamfry.ie/files/
indexfile.asp?id⳱97.
204 The Business Lawyer; Vol. 60, November 2004

Under the prior system, “any judge, regardless of his or her background and
experience, c[ould] be assigned a complex case involving corporate litigation. A
judge d[id] not know, until the last moment, what case he or she w[ould] be
assigned, which rule[d] out the possibility of pre-preparation.”465
In 1991, the Superior Court of Justice in Toronto, Ontario established a “Com-
mercial List” as an informal court division.466 Given the province’s business and
financial focus, the court wanted “to be able to deal in an effective manner with
complicated corporate, commercial and bankruptcy/insolvency related cases.”467
The Commercial List may include bankruptcy matters, various statutes, and “such
other commercial matters as a judge presiding over the Commercial List may
direct to be listed on the Commercial List. . . .”468 This last “basket clause” permits
such other commercial matters as the presiding judge may direct.469 In 2001,
there were five or six assigned judges, with a “solid cadre of them . . . experienced
as commercial judges.”470 The Commercial List is voluntary, except for bankruptcy
matters; and “[t]he special procedures adopted for the hearing of matters on the
Commercial List expedite the hearing and determination of these matters and
they have met with considerable approval.”471 It is considered a very successful
program.472

XVI. COMPLEX LITIGATION PROGRAMS473


A number of jurisdictions have established complex litigation programs. In
developing such programs, the debate among the bench, bar, legislature, and

465. Plans for a Specialist Commercial Division with the Circuit Court, IRISH EXAMINER (Aug. 4, 2003),
at http://archives.tcm.ie/irishexaminer/2003/08/04/story408999439.asp (“The proposal for the Com-
mercial Court arose out of a report . . . by the Committee on Court Practice and Procedure. . . .
According to the committee, ‘there is merit in establishing a more specialized approach to commercial
cases.’”).
466. The Honorable Robert A. Blair, The Commercial List—Handling Business Cases Effectively, THE
METRO. CORP. COUNS., NE ED., May 2001, at 36 [hereinafter Blair Interview].
467. Id.
468. Practicing Direction Concerning the Commercial List, Superior Court of Justice, Toronto Region
at http://www.ontariocourts.on.ca/superior_court_justice/notices/commercial.htm [hereinafterPractic-
ing Direction]. (These may include: “applications, motions and actions which in essence involve the
following: a) Bankruptcy and Insolvency Act; b) Bank Act, relating to realizations and priority disputes;
c) Business Corporations Act (Ontario) and Canada Business Corporations Act; d) Companies’ Cred-
itors Arrangement Act; e) Limited Partnerships Act; f ) Pension Benefits Act; g) Personal Property
Security Act; h) receivership applications and all interlocutory motions to appoint, or give directions
to, receivers and receiver/managers; i) Securities Act; j) Winding-Up and Restructuring Act; k) Credit
Unions and Caisses Populaires Act, relating to credit unions and caisses populaires under administra-
tion or that are being wound up or liquidated.”).
469. Blair Interview, supra note 466.
470. Id.
471. Practicing Direction, supra note 468. In describing its general procedures, Practicing Direction
5 states “Co-operation, communication and common sense shall continue to be the principles of
operation on the Commercial List.” Id.
472. Blair Interview, supra note 466.
473. Although the focus of this Article is on business and commercial courts, we have added this
general section on complex courts. We have not focused on a number of issues that an article on
complex litigation would normally provide; rather, we include the instant discussion in the context
of complex commercial and business cases. It is our view that the objectives in establishing a successful
The Creation and Jurisdiction of Business Courts in the Last Decade 205

public has often been framed as a choice between having a complex litigation
program or a commercial/business litigation program.
The authors, who practice primarily in the Philadelphia region, observe that
the Philadelphia Court of Common Pleas has separate and distinct programs for
complex tort cases,474 class actions,475 as well as commercial cases.476 Similarly, in
Chicago, the general calendar program began with the individual assignment of
tort cases, not commercial cases.477 In Las Vegas, which has a business court, there
is also a complex litigation program which now includes a special court to hear
construction defect cases.478
Thus, we raise the question as to whether the apparent “either/or” conflict
between complex litigation programs and commercial programs is a true conflict.
While there may arguably be competitive budgetary concerns in some instances,
this putative conflict may actually reflect a belief that is neither empirically sup-
ported nor necessary.479 We suggest that a single court system can address both

business court are not coextensive with the objectives of a court focused on handling all types of
complex cases; though there may be some overlap in the areas of competent and effective case man-
agement and limited specialization. As to the meaning of complexity, an issue not addressed herein,
see, e.g., R. George Wright, The Illusion of Simplicity: An Explanation of Why the Law Just Can’t Be Less
Complex, 27 FLA. ST. U. L. REV. 715 (2000); Jeffrey W. Stempel, A More Complete Look at Complexity,
40 ARIZ. L. REV. 781 (1998); Neil Vidmar, The Performance of the American Civil Jury: An Empirical
Perspective, 40 ARIZ. L. REV. 849, 855–61 (1992); Jay Tidmarsh, Unattainable Justice: The Form of
Complex Litigation and Limits of Judicial Power, 60 GEO. WASH. L. REV. 1683 (1992); Peter H. Schuck,
Legal Complexity: Some Causes, Consequences, and Cures, 42 DUKE L.J. 1 (1992); Stephen B. Burbank,
The Costs of Complexity, 85 MICH. L. REV. 1463 (1987).
474. See supra note 246.
475. See supra note 247.
476. See supra pages 176–78.
477. See supra note 85.
478. The Clark County District Court has a Complex Litigation Center. This facility was “converted
for use in extremely complicated multiple party cases, primarily the construction defect cases . . . [to]
accommodate up to 50 counsels, along with their clients, and has a public seating gallery of 100.”
Chief Justice Agosti Addresses Nevada Legislature, 11 NEV. LAW. 16 (Apr. 2003); Joe Wheeler, Packed
House Hears Judge Explain Construction Litigation Process, THE CONSTR. ZONE (Feb. 2004), available at
http://www.nvczone.com/NSA_Judges_On_CDLitigation_Feb_2004.htm (“The Complex Litigation
Program in Clark County created a special court to hear construction defect cases.”); Hubble Smith,
CONSTRUCTION DEFECT LAWSUITS: Falling Between the Cracks, LAS VEGAS REV. J., Feb. 2, 2003, at
http://www.reviewjournal.com/lvrj_home/2003/Feb-02-Sun-2003/news/20226050.html.
479. One challenge raised is that the best judges will go into business court programs. This prop-
osition is not axiomatic. Judges may go where their interest, experience or ability suits them. Thus,
there may be judges who excel in handling the dynamics of courtroom interactions, who want to be
trying cases as often as possible and who detest the long paperwork of motion intensive cases. Such
judges may be of the highest caliber, and yet would never want to participate in a commercial, or
complex, litigation program. Moreover, under the theory that the best judges will necessarily go into
the specialized court, those judges would similarly go into complex court program. This would like-
wise take the best judges from the average person’s case, e.g., in favor of the class action bar or the
construction defect bar; and would make it more likely that large businesses, whose cases would more
often be complex, would get more attention than cases involving small businesses.
Another doubt is raised via the argument that a business court will have an inherent pro-business
bias. On this issue, most commercial program cases involve businesses litigating against each other;
and, thus, the issue of consumer vs. business will not typically arise. Even where it has, however, the
cases have not been pre-determined for corporate victory. For example, in Zwiercan v. General Motors
Corp., No. 3235 (Phila. Ct. Com. Pl. Mar. 18, 2003), available at http://courts.phila.gov/cgi-bin/opin-
ions/comcrtsearch.cgi?dropdown⳱cptcvcom (Mar. 18, 2003), the court ruled that the consumers’
claims for reliance were sufficient under Pennsylvania’s Unfair Trade Practices and Consumer Protec-
206 The Business Lawyer; Vol. 60, November 2004

needs as distinct, rather than as two objects seeking to occupy the same space.480
Apart from budgetary limitations, a court faced with significant commercial liti-
gation and other types of complex cases might very well want to consider spe-
cialized programs to address both sets of needs and requirements.

A. CALIFORNIA’S COMPLEX CIVIL LITIGATION PILOT PROGRAM


In 1990, California’s State Bar “appointed an ad hoc Business Court Committee
to study the question of whether specialized business tribunals should be estab-
lished in California trial courts.”481 After years of varied efforts and strong debate,
that inquiry ended in May of 1997 when the Business Court Study Task Force,
created by the Judicial Council of California482 in 1996, issued a lengthy report
recommending against the creation of a business court.483 The Task Force instead
concluded that California should take action “to improve the quality of decision-
making in complex cases, including [but not limited to] business and commercial
disputes.”484
The Task Force Report observed and concluded that “[t]he concept of a busi-
ness court or division is not supported by important constituencies whose support
would be necessary to make the concept viable.”485 By way of example, in June
1993, the State Bar’s Business Court Committee issued a status report proposing

tion Law, even though new appellate case law was argued to support a dismissal. In Tomlin v. Dylan
Mortgage, Inc., No. 99 CVS 3551 (N.C. Super. Ct. Feb. 1, 2002), available at http://www.ncbusiness
court.net/opinions/Tomlin%20v.%20Dylan%20Mortgage%20Inc.,%202002%20NCBC%201.htm,
Judge Tennille certified a class in a case involving allegedly improper real estate loans and refinancing
to high risk applicants. Again, if the business courts were inherently anti-consumer, one would not
expect such a result; but rather an effort to protect the business by any means. These cases are adduced
not to substitute for a body of exhaustive research, but to point out that allegation of bias must be
put to the test.
480. In addition to a specialized Commercial Court, England has a specialized Technology and
Construction Court. See supra Section XV. This Court’s jurisdiction includes, e.g.,
Building and other construction disputes, . . . ; Engineering disputes; Claims by and against
engineers, architects, surveyors, accountants and other specialised advisers relating to the services
they provide; . . . Claims relating to the design, supply and installation of computers, computer
software and related network systems; Claims relating to the quality of goods sold or hired, and
work done, materials supplied or services rendered; . . . Claims relating to the environment (for
example, pollution cases); . . . [and] Claims involving the taking of accounts where these are
complicated . . . .
The Technology and Construction Court Guide, ¶ 1.7, at 11–12, at http://www.courtservice.gov.uk/cms/
media/tcc_guide.doc. “In reality, the TCC is the specialist court of the High Court which deals with
all those complicated and technical civil disputes which are not the province of some other specialist
tribunal.” Id. at 7–8.
481. California Judicial Council Business Court Study Task Force, Final Report of the California
Judicial Council Business Court Study Task Force (May 16, 1997), at 2 [hereinafter 1997 Final Report]
(on file with The Business Lawyer, University of Maryland School of Law).
482. The Judicial Council “is the policymaking body of the California courts . . . .” Judicial Council
of California, News Release, State Courts Resolve Complex Cases More Efficiently National Report Finds
(Aug. 29, 2003) [hereinafter August 2003 News Release].
483. 1997 Final Report, supra note 481.
484. Id. at 7.
485. Id. at 3.
The Creation and Jurisdiction of Business Courts in the Last Decade 207

the creation of a business and commercial law division within the Superior Court
as a pilot project.486 Eight months later, “the State Bar Board of Governors passed
a resolution forbidding the Business Court Committee from pursuing or sup-
porting legislation to establish a specialized court for business cases.”487 The pri-
mary opposition was on the basis that a business court would be “elitist,” taking
the best judges and other resources, and would potentially favor business inter-
ests.488 The Task Force believed that its complex court recommendations could
assuage concerns about perceived inequality, lack of predictability, and the quality
of decision making in business and commercial litigation.489
After the Business Court Task Force Report, in 1997, California’s Chief Justice
Ronald M. George appointed the Complex Civil Litigation Task Force to “identify[]
ways for trial courts to manage complex cases more efficiently and effectively.”490
Complex litigation included cases requiring “exceptional management to avoid
placing unnecessary burdens on the court or the litigants and involve such areas
as antitrust, securities claims, mass torts, and class actions.”491 The Complex Lit-
igation Task Force included subcommittees focusing on pretrial practice; trial;
specialized areas (e.g., antitrust, construction, environmental, insurance, intellec-
tual property, mass torts, securities, and class actions); ADR; technology; and
judicial education.492 The Complex Litigation Task Force developed a judicial
deskbook for managing complex litigation.493
In January 2000, the Judicial Council established the complex case manage-
ment programs in six California Superior Courts.494 Known as the Complex Civil
Litigation Pilot Program, it was “designed to improve judicial management of
complex cases and to expedite case resolution, keeps costs reasonable, and pro-
mote effective decision making by the courts, parties, and counsel.”495 Los Angeles
began with six judges, Orange County had five judges and the Northern California
courts had one judge each.496
In June 2003, the National Center for State Courts (“NCSC”), which had con-
tracted with the California Administrative Office of the Courts to study the Com-
plex Civil Litigation Pilot Program, issued a lengthy study evaluating the pro-

486. Business Court Committee of the Business Law Section of the State Bar of California, Status
Report of the Business Court Committee of the Business Law Section of the State Bar of California, at 2
( June 30, 1993) (Draft) (on file with authors).
487. 1997 Final Report, supra note 481, at 2.
488. Id. at 5–6. But see supra note 479.
489. Final Report 1997, supra note 481, at 7.
490. Judicial Council of California, Complex Civil Litigation, Fact Sheet, at 2 (Sept. 2004) [hereinafter
September 2004 Fact Sheet], at http://www.courtinfo.ca.gov/reference/documents/comlit.pdf.
491. Id. at 2.
492. Id. at 1–3.
493. Id. at 2.
494. August 2003 News Release, supra note 482. These included the Alameda, Contra Costa,
Orange, Los Angeles, San Francisco, and Santa Clara Superior Courts. Id. The pilot program was
created and funded by the 1999 Budget Act. June 2004 Fact Sheet, supra note 490, at 3. The total
annual allocation for the pilot program is $2,885,000. Id. at 4.
495. August 2003 News Release, supra note 482.
496. September 2004 Fact Sheet, supra note 490, at 3.
208 The Business Lawyer; Vol. 60, November 2004

gram.497 Before the pilot program, the chief complaints (as in other courts)
included the problems associated with case assignment to a master calendar, ac-
companied by a complaint of “over-reliance on referees.”498 The pilot program
uses individual calendar assignments, with a single responsible judge, from in-
ception to resolution of the case.499
The NCSC Evaluation identifies three basic types of complexity, any one or
more of which might exist in the same case. These include legal complexity,
involving difficult legal issues that will create numerous motions; evidentiary com-
plexity, both in terms of the specialized expertise required to understand the
evidence and the volume of evidence; and logistical complexity, involving large
numbers of parties and counsel, and large volumes of evidence.500
The NCSC Evaluation states that the pilot program includes purely commercial
cases501 that are deemed complex, but these constitute only about one-fourth of
the total caseload.502 Approximately one-third of the pilot cases are complex
torts503 and the remainder “could be classified in either category.”504 Half of the
pilot cases fall into the categories pre-designated by Court Rule as “provisionally
complex.”505 The single largest category of cases involves construction defects
(26.3 percent), followed by class actions (16.4 percent), and breach of contract/
warranty (10.8 percent). On the other end of the spectrum are antitrust/trade
cases (0.5 percent); asbestos mass torts (0.7 percent); medical malpractice (1.0
percent); mandamus (1.0 percent); professional negligence (1.1 percent); securi-
ties (1.2 percent); other personal injury/wrongful death (1.3 percent); other real
property (1.6 percent); fraud (1.7 percent); product liability (1.8 percent); insur-
ance claims from complex cases (2.2 percent); toxic tort/environmental (3.5 per-
cent); eminent domain (4.0 percent); insurance coverage (4.3 percent) and busi-
ness torts (5.7 percent).506
California Court Rule 1800 provides a general definition for complexity, and
then gives a list of factors to weigh in determining if a case is complex. Thus,
Rule 1800(a) states: “[a] ‘complex case’ is an action that requires exceptional
judicial management to avoid placing unnecessary burdens on the court or the

497. Paula L. Hannaford-Agor, Nicole L. Mott, & Timothy F. Fautsko, Evaluation of the Centers for
Complex Civil Litigation Pilot Program, National Center for State Courts and California Administrative
Office of the Courts, at v ( June 30, 2003) [hereinafter NCSC Evaluation], at http://www.ncsconline.
org/WC/Publications/Res_ComLit_ComplexCivilLitigationPub.pdf.
498. Id. In the master calendar system, multiple judges hear and address different stages of the
same case “resulting in the lack of a single point of judicial accountability for case supervision, insuf-
ficient judicial involvement in pretrial management of complex cases, and lack of judicial knowledge
about and experience in specific areas of substantive law.” Id. at vi.
499. Id.
500. Id. at 5–6.
501. The NCSC includes securities, antitrust, breach of contract/warranty, and business torts in
this category. Id. at 46.
502. Id. at vii.
503. Id. These are defined as construction defect, toxic torts, mass torts, products liability, fraud,
medical malpractice, professional negligence, and other personal injury type suits. Id. at 46 n.53.
504. Id. at vii.
505. Id. See CAL. CT. R. 1800(c)–(d) (West Supp. 2004).
506. NCSC Evaluation, supra note 497, at 46.
The Creation and Jurisdiction of Business Courts in the Last Decade 209

litigants and to expedite the case, keep costs reasonable, and promote effective
decision making by the court, the parties, and counsel.”507 Under Rule 1800(b),
the factors “the court shall consider, among other things” in making the com-
plexity determination, include:
(1) [the likelihood of ] Numerous pretrial motions raising difficult or novel
legal issues that will be time-consuming to resolve; (2) Management of a
large number of witnesses or a substantial amount of documentary evidence;
(3) Management of a large number of separately represented parties; (4) Co-
ordination with related actions pending in one or more courts in other coun-
ties, states, or countries, or in a federal court; or (5) Substantial postjudgment
judicial supervision.508
The Court Rules do recognize certain case types as “provisionally complex,”
meaning that the case will be found complex unless a judge determines otherwise,
after a review of the initial pleadings.509 Thus, by Rule, a case is provisionally
complex if it involves:
(1) Antitrust or trade regulation claims; (2) Construction defect claims in-
volving many parties or structures; (3) Securities claims or investment losses
involving many parties; (4) Environmental or toxic tort claims involving
many parties; (5) Claims involving mass torts; (6) Claims involving class
actions; or (7) Insurance coverage claims arising out of any of the [afore-
mentioned] claims . . .510
This rule, however, is subject to the caveat that no case is provisionally complex
“if the court has significant experience in resolving like claims involving similar
facts and the management of those claims has become routine.”511 Moreover, “[a]
court may declare by local rule that certain types of cases are or are not provi-
sionally complex pursuant to this subdivision.”512

507. CAL. CT. R. 1800(a).


508. Id. at 1800(b).
509. NCSC Evaluation, supra note 497, at vii; CAL. CT. R. 1800(c).
510. CAL. CT. R. 1800(c). Rule 1800(c)(2) is apparently the basis for considerable litigation in
Orange County. NCSC Evaluation, supra note 497, at 18. The California Deskbook on the Management
of Complex Civil Litigation defines complex construction defect litigation as follows:
Construction defect litigation typically involves plaintiff owners of various property interests
affected by alleged defects. Plaintiffs may include a large number of unit owners and a home-
owners association. Defendants commonly include the primary builder or developer of the pro-
ject, many or all of the subcontractors that performed work on the project, design professionals
such as architects and engineers, and the real estate agents or brokers who marketed the project.
Claims frequently include breach of contract, strict liability and tort, and negligence in general
terms without identifying the specific defects. Frequently there are numerous cross complaints
for indemnification. Identifying the specific defects, the parties related to these defects, the costs
of repair, and the specific damages for each plaintiff is frequently difficult. The number and
difficulty of factual issues create special problems for settlement.
Judicial Council of California, Deskbook on the Management of Complex Civil Litigation § 3.10
(2000).
511. CAL. CT. R. 1800(d).
512. Id.
210 The Business Lawyer; Vol. 60, November 2004

In Contra Costa County, the clerk will automatically refer a case for review to
the presiding judge if there are more than seven parties and the cover sheet
designates the case as complex.513 In Santa Clara County, if one of the parties
designates a case as complex, the pilot judge determines if it is actually complex.514
San Francisco uses a similar method.515 In Oakland, Alameda County, after a party
designates a case as complex, there is a hearing to determine whether it will be
included in the program.516 In Orange County, if a case is designated as complex
by a party, it is randomly assigned to one of the program judges, but will be
reassigned upon a successful challenge.517 Cases not originally treated as complex
can later be reassigned to the program.518
Los Angeles County, with a population of over 9.8 million and a decentralized
Superior Court, has a dramatically different approach than the other counties.519
All class actions are filed in a single division and then immediately assigned to
the pilot program, with other cases designated as complex being assigned to a
civil court judge who reviews the case and has the discretion to keep it or send
it to the pilot program for case management.520 One third of the cases referred
have been sent back to the regular docket as they were determined not to be
complex.521 The supervising judges in Los Angeles and Orange County, and the
single judges in the other four pilot programs, review cases before accepting them
into the program, using objective procedures and criteria.522
The judges view themselves as pro-active case managers. They use a variety of
skills and techniques to move the parties toward identifying key areas of dispute
and investigation, so that they can make informed judgments to facilitate settle-
ment, and to make dispositive rulings, as necessary, to resolve cases.523 Only a
small number of cases went to trial.524
The large portion of construction defect cases raises a number of issues, such
as to what extent these cases might be treated as commercial cases in some in-
stances in other jurisdictions.525 A broader, and yet more pointed issue, is raised

513. NCSC Evaluation, supra note 497, at 13.


514. Id. at 14. Only an estimated 8 to 10 percent of the cases are returned. Id.
515. Id. at 15.
516. Id. at 17.
517. Id. at 18.
518. Id.
519. Id. at 19.
520. Id. at 19–20.
521. Id. at 20.
522. Id. at 10. In Los Angeles, however, a judge can opt to retain a complex case that might
otherwise go into the program. Id.
523. Id. at 12. One complaint the program judges had was that their effectiveness was hampered
by procedural rules limiting their ability to grant partial summary judgments. Id. at 21.
524. Id.
525. In Massachusetts, the Business Litigation Session will hear commercial claims including real
estate matters “which have complex factual or legal issues or are likely to require complex case
management.” See Appendix A, infra p. 242. If a homeowners association is the plaintiff, suing a
corporate builder, this section may be implicated. If the case is viewed as a body of residential home-
owners or a mass tort, then this may not be the case. In New York, similar ambiguity may be resolved
as part of the ongoing case guideline study; although at least some judges have been willing in the
past to hear construction defect cases in the Commercial Division. See Kerusa Co. LLC v. W10Z/515
The Creation and Jurisdiction of Business Courts in the Last Decade 211

by the potential for treating this huge swath of construction defect cases in a
specialized forum. These cases not only appear to take up a disproportionate
amount of the complex pilot case load,526 but construction defect cases have
unique characteristics which may permit such specialized treatment.527
Although some might argue that a construction defect litigation program would
cater to one segment of litigants and to the bar, and divert resources, etc., as was
argued against a business court in California, such an option certainly seems
rational. It is akin to court programs dedicated to asbestos litigation, and it is a
route taken in Clark County, Nevada.528 This reflects the fact that the needs and
objectives of substantively specialized courts can be different from, yet not in
conflict with, the objectives of a specialized complex litigation program.

B. CONNECTICUT’S COMPLEX LITIGATION DOCKET


In April 1997, The Corporate Bar issued a “rare” policy statement calling for
the creation of a business court in Connecticut.529 In January 1997, a bill had
been introduced before Connecticut’s House of Representatives to establish a busi-
ness court.530 The following winter, the Connecticut Trial Lawyers Association
voted to oppose a business court, and there was editorial opposition as well.531
During that same time period, there was advocacy for Connecticut to develop and
implement a complex litigation program for the twelve judicial districts of Con-
necticut’s Superior Court.532 Framing the debate as a choice between one court
program or the other, Connecticut did not adopt a business court, but launched

Real Estate Ltd. P’ship, No. 04 CIV.708-10(GEL), 2004 WL 1048239, at *4 (S.D.N.Y. May 7, 2004)
(in a construction defect case pending in bankruptcy court, the federal court observed that the cases
started in the commercial division and could be efficiently resolved there, rather than being transferred
to another bankruptcy court).
526. As things now stand, the resources of the complex litigation program provide an exceptional
and unique forum to this single segment of litigants and their lawyers, at least in some counties. NCSC
Evaluation, supra note 497, at 14 n.22, 17–18, 22 n.28 (Contra Costa and Orange Counties).
527. The NCSC Evaluation repeatedly observes that these cases reflect a unique use of referees,
the prevalence of the construction defect bar involved in the complex case program (37 percent of
surveyed lawyers with complex practices), and the need for less management because of counsel’s
familiarity with each other. NCSC Evaluation, supra note 497, at viii, 12, 14, 18, 25, 28.
528. See supra note 478.
529. Lynne J. Tomeny, The Corporate Bar Issues a Policy Statement Supporting Creation of A Connecticut
Business Court, METROPOLITAN CORP. COUNS., Apr. 1997, at 53. Lynne Tomeny was the Corporate
Bar’s President at the time and issued a letter setting forth reasons for creating business court.
530. Create a Complex Business Docket—Not a Business Court, CONN. L. TRIB., May 25, 1998 [here-
inafter Law Tribune Editorial].
531. Susan D. Etkind, Attorneys Debate Simplifying Complex Litigation, CONN. L. TRIB., Feb. 9, 1998;
see also Law Tribune Editorial, supra note 530 (advocating that a complex litigation program would
provide a flexibility that more accurately met the needs of Connecticut’s court system and huge jury
backlog). The complex docket was also advocated by the Citizens’ Conference on the Connecticut
Courts in November 1997. Peter L. Costas, Complex Litigation Docket A First Step Toward Better Civil
Litigation Management, CONN. LAW. Dec. 1999–Jan. 2000, at 14. The debate in Connecticut clearly
reflected (i) a belief that there had to be a choice between these two types of courts; and (ii) strong
passions on which choice should be made.
532. Etkind, supra note 531.
212 The Business Lawyer; Vol. 60, November 2004

its complex litigation program on June 1, 1998.533 This program is known as the
Complex Litigation Docket or CLD.
The complex litigation program’s hallmark is to assign one judge to each case.534
The judge becomes involved upon assignment, and develops a case plan at an
early case management conference.535 Either the parties or the court can request
a complex litigation designation.536 The bench urges the bar to use the Complex
Litigation Docket “in any type of case that has intricate issues or unique concerns
which would benefit from the specialized attention available in this program.”537
The Chief Administrative Judge of the Civil Division is the ultimate gatekeeper
on whether or not a case is accepted in the CLD.538
Currently there are eight complex litigation judges,539 with each judge respon-
sible for an average of 143 cases.540 ADR is an important component of the pro-
gram, with the judges acting as mediators in each other’s cases, giving at least a
full day to the mediation process.541 In an important case for the CLD, Connecti-
cut’s Supreme Court reversed a lower appellate court decision, and found that
“as a matter of law, no case is too complex for summary judgment.”542
The original categories of case types were broad, including class actions, se-
curities fraud, mass torts, medical malpractice, products liability, construction
contracts, intellectual property, and a catch-all category provision,543 and matters
“where the multiplicity of parties or issues suggests special procedures.”544 Case
types had been expanded to fifteen categories, from a more narrow original pro-
posal of class actions, product liability, construction contracts, and claims under
Connecticut’s Unfair Trade Practices Act.545 Cases can be designated complex

533. Scott Brede, Streamlining the Backlog of Knotty Cases, CONN. L. TRIB., Apr. 19, 1999. Those
advocating the complex court program believed that some goals sought in a business court could be
achieved, such as developing case law, but business court advocates expressed concern that the com-
plex court would not meet such objectives, as achieved in New York’s Commercial Division, and
asserted that concerns over a business court being “elitist” or taking assets away from the handling of
other litigation were not accurate. Etkind, supra note 531.
534. Law Tribune Editorial, supra note 530. This is not the typical judicial assignment pattern in
Connecticut. Brede, supra note 533.
535. Peter L. Costas, The Complex Litigation Docket, Try It, You’ll Like It, CONN. LAW., Feb. 2000,
at 18.
536. Sheila Anne Denton, Resolving Complex Cases: The One-Judge Solution, CONN. LAW., Mar. 2004,
at 16 (“Currently, approximately forty CLD applications are received each month . . . 43 percent are
from the presiding judge, 32 percent are from the defendant, and 25 percent are from the plaintiff.”).
537. Id.
538. Notice to Attorneys re: Complex Litigation Docket, Superior Court, Civil Division ( June 3,
2002), available at http://www.jud.state.ct.us/external/super/ComplexLitigationNotice.pdf.
539. Denton, supra note 536, at 17. State budget concerns have limited reaching the goal of twelve
judges.
540. Id. These are not permanent assignments, as judges can be transferred to the normal docket.
Id. The CLD is available in five court locations. Notice to Attorneys re: Complex Litigation Docket,
Superior Court, Civil Division ( June 3, 2002), available at http://www.jud.state.ct.us/external/super/
ComplexLitigationNotice.pdf.
541. Denton, supra note 536, at 17.
542. Gould v. Mellick & Sexton, 819 A.2d 216, 220 (Conn. 2003).
543. Denton, supra note 536, at 16.
544. Brede, supra note 531.
545. Id.
The Creation and Jurisdiction of Business Courts in the Last Decade 213

based on various factors, including the number of parties, the size of the claim
and the length of the trial.546
During its first year of operation, the assigned cases were “evenly divided be-
tween business and tort cases.”547 Between June 1998 and November 2003, 2,585
cases had been designated to the complex litigation docket.548 As of March 2004,
46 percent of the cases involved non-vehicular torts such as medical malpractice,
wrongful termination, and product liability.549 Twenty-one percent are contract
cases, while vehicle cases are 7 percent and property damage cases 6 percent of
the caseload.550 There are small percentages of housing matters, administrative
appeals, and probate appeals, with the remaining 13 percent including other
miscellaneous matters.551 The program is considered by most to be a success.552

C. ARIZONA’S COMPLEX LITIGATION PILOT PROGRAM


On November 22, 2002, Arizona Supreme Court Chief Justice Charles E. Jones
issued an order establishing a Complex Litigation Program in the Superior Court
of Maricopa County on an experimental basis.553 The Supreme Court had previ-
ously created the Committee to Study Complex Litigation in Arizona courts, and
that body produced a report which the Arizona Judicial Council unanimously
approved in October 2002.554 Originally, the pilot program was to operate in
Maricopa for a period that is no longer than January 1, 2003 to December 31,
2004.555 The program is monitored by the simultaneously created Complex Civil
Litigation Court Evaluation Committee.556
The new rules defining cases that are appropriate for complex designation focus
on case management issues, and not the subject matter of cases.557 These include
such factors as: the number of pre-trial motions expected; the number of wit-
nesses; the amount of evidence; the numbers of separately represented parties;
coordination with related cases in other forums; the need for post-judgment ju-
dicial supervision; whether the case would benefit from a single judge having
knowledge of the specific area of law at issue; inherently complex legal issues;

546. Id.
547. Costas, supra note 531, at 14 (as reported by Chief Administrative Judge Joseph H. Pelligrino).
548. Denton, supra note 536, at 16.
549. Id.
550. Id.
551. Id.
552. Id. at 17.
553. In the Matter of Authorizing a Complex Litigation Program Applicable in Maricopa County,
Administrative Order No. 2002-107 (Ariz. Nov. 22, 2002) [hereinafter Arizona Order]. Phoenix is
located in Maricopa County.
554. Id.
555. Id. As discussed herein, this date was extended.
556. Id. The Court Evaluation Committee has its own website, at http://www.supreme.state.az.us/
courtserv/ComplexLit/default.htm.
557. ARIZ. R. CIV. P. 8(i)(1) (2004) (rule made applicable under the Arizona Order), supra note
553, at Appendix A. The text of ARIZ. R. CIV. P. 8(i)(1) currently provides: “[A] ‘complex case’ is a
civil action that requires 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, the parties, and counsel.”
214 The Business Lawyer; Vol. 60, November 2004

and the need for expeditious resolution of a complex matter and designation when
the interests of justice would be served.558
The Committee to Study Complex Litigation reviewed materials on complex
and commercial case programs nationally, and concluded that Arizona should
follow California’s model, rather than a commercial case program.559 The Com-
mittee recognized the California pilot program as targeting substantively and pro-
cedurally complex cases, and that the Arizona program would include not only
traditional commercial cases, but cases such as mass and toxic torts.560 Unlike
California, Arizona courts would not get new funding but would rely on a real-
location of existing court resources, or fees generated by that court.561 Continuing
judicial education is an important part of the program.562
One judge handles the entire case, and is to take a hands-on approach, with
case management “aimed at encouraging early resolution of cases or parts of
cases.”563 There are to be court-annexed mediators and arbitrators, and program
judges will be able to handle discovery disputes on short notice.564 The parties
may move and seek to certify cases for complex designation, but it is the presiding
judge of the court, or that judge’s designee, who makes the decision.565 The ap-
plication process is serious as it requires certification under the strictures of Ari-
zona Rule 11;566 and the gatekeeper function is not to merely be a rubber stamp
to anyone asking for inclusion in the program.567

558. ARIZ. R. CIV. P. 8(i)(2), supra note 553, at Appendix A. Factors considered in determining
complexity are whether:
(A) Numerous pretrial motions raising difficult or novel legal issues that will be time-consuming
to resolve; (B) Management of a large number of witnesses or a substantial amount of documen-
tary evidence; (C) Management of a large number of separately represented parties; (D) Coor-
dination with related actions pending in one or more courts in other counties, states or countries,
or in a federal court; (E) Substantial post judgment judicial supervision; (F) The case would
benefit from permanent assignment to a judge who would have acquired a substantial body of
knowledge in a specific area of the law; (G) Inherently complex legal issues; (H) Factors justifying
the expeditious resolution of an otherwise complex dispute; (I) Any other factor which in the
interests of justice warrants a complex designation or as otherwise required to serve the interests
of justice.
Id.
559. Committee to Study Complex Litigation, Final Report of the Committee to Study Complex Liti-
gation (Sep. 2002), available at www.supreme.state.az.us/courtserv/complexlit/final.pdf at 3–4 [here-
inafter Arizona Final Report]. The Court Evaluation Committee’s minutes for March 18, 2004 indicate
that the issue of a New York style business court was raised, but the consensus was not to include
non-complex business cases, though the Committee would investigate if there were complex business
cases that were not being placed into the program. Complex Civil Litigation Court Evaluation Com-
mittee Minutes, Mar. 18, 2004 (Draft) [hereinafter March 2004 Minutes], available at http://www.
supreme.state.az.us/courtserv/ComplexLit/Min-04-03.pdf.
560. Arizona Final Report, supra note 559, at 4.
561. Id.
562. March 2004 Minutes, supra note 559, at 2.
563. Arizona Final Report, supra note 559, at 4.
564. Id.
565. Arizona Order, supra note 553 (appending new Rule 8(i)(3, 6)). See ARIZ. R. CIV. P. 8(i)(3)–
(7).
566. Id. at 8(i)(3).
567. The Evaluation Committee’s August 2003 minutes indicate that while fourteen cases had been
assigned to the program, twelve applications were denied, with some concern expressed over forum
The Creation and Jurisdiction of Business Courts in the Last Decade 215

As of March 18, 2004, there were twenty-six cases in the program, with three
designations pending.568 The complex litigation pilot program judges have had to
maintain a full civil caseload, and there have been budget constraints affecting
the pilot program.569 In light of the slow start up of the program, the Evaluation
Committee anticipated asking for an extension of the pilot program beyond De-
cember 2004 so that the program’s impact can be better measured.570 Similar to
concerns expressed by those favoring complex courts over business courts, one
judge expressed a concern that the complex litigation program might be viewed
as “elitist.”571 The purpose of the program is to relieve congested calendars for the
judges hearing more routine cases, thus removing the time consuming complex
cases from their dockets and re-assigning the complex cases “to a dedicated panel
of judges specially trained in complex case management;” ideally cutting down
on litigation time and saving costs and resources of both the court and the
litigants.572

D. PITTSBURGH’S COMPLEX CASE ASSIGNMENT


Through local rules, the Court of Common Pleas of Allegheny County, Penn-
sylvania (Pittsburgh) has a format for assigning complex cases to a single judge.573
The rule provides that application for complex designation be made to the “Com-
plex Case Judge.”574 Cases may be considered complex if the case cannot be tried
within ten days, involves complex questions of law and fact, “or when the orderly
administration of justice requires that the case be assigned to a single judge.”575
The parties must file a motion with the complex case judge to obtain that
assignment.576
Judge R. Stanton Wettick, Jr. has been the complex case judge since 1990.577
He has described most complex cases as being in the areas of medical malpractice,
products liability, and commercial litigation.578 Cases coming to him as complex
case judge include “large cases involving the kinds of complex issues that char-

shopping. Complex Civil Litigation Court Evaluation Committee Minutes, Aug. 26, 2003 (Draft),
available at http://www.supreme.state.az.us/courtserv/ComplexLit/Min-03-08.pdf.
568. March 2004 Minutes, supra note 559, at 1. More recent figures are set out in Complex Civil
Litigation Court Evaluation Committee Minutes, Aug. 23, 2004 (Draft) [hereinafter August 2004
Minutes], available at http://www.supreme.state.az.us/courtserv/ComplexLit/Min-04-08.pdf.
569. Complex Civil Litigation Court Evaluation Committee Minutes, Dec. 17, 2003 (Draft), at 1–
2, available at http://www.supreme.state.az.us/courtserv/ComplexLit/Min-03-12.pdf.
570. Id. at 2. Arizona’s Chief Justice has since “approved a two-year extension of the pilot program
and the [Evaluation] Committee’s term.” August 2004 Minutes, supra note 568, at 1.
571. March 2004 Minutes, supra note 559, at 3.
572. News Release, Arizona Supreme Court Administrative Office of the Courts, New Complex
Litigation Program Promises to Reduce Time and Cost of Going to Court ( Jan. 7, 2003) (on file with The
Business Lawyer, University of Maryland School of Law).
573. ALLEGHENY CO. PA. CIV. AND FAM. R. 249 IV (1999).
574. Id. at IV(A).
575. Id. at IV(B).
576. Allegheny County Civil Practice Manual § 9-1.0, at 91.
577. A Conversation With Judge Stanton Wettick, Allegheny County Common Pleas Court, PENN. LAW
WKLY., Apr. 17, 1995, at 7 [hereinafter Wettick 1995 Interview]; Conversation With Judge John L.
Musmanno, Allegheny County Common Pleas Court, PENN. L. WKLY., July 25, 1994, at 7.
578. Wettick 1995 Interview, supra note 577.
216 The Business Lawyer; Vol. 60, November 2004

acterize corporate governance, complicated commercial transactions and insur-


ance coverage issues . . . .”579 From seeing so many of these cases he has developed
an expertise in handling them.580 When responding to a question about Pitts-
burgh’s hospitality to high-tech business, one federal judge said of Judge Wettick:
“Judge Wettick of the Common Pleas Court does an outstanding job of handling
discovery motions and complex business litigation. The results compare favorably
with those in the new commercial or business courts that are being set up else-
where.”581 Approximately ninety percent of the cases are settled or otherwise reach
disposition before trial.582

XVII. DELAWARE COURT OF CHANCERY AND SUPERIOR COURT583


A. COURT HISTORY
The most well known of the courts that are considered business courts is the
Delaware Court of Chancery, which historically is an equity court.584 It hears
numerous kinds of corporate disputes,585 as well as other equitable matters wholly
unrelated to corporations.586 The Delaware Superior Court is Delaware’s trial level
court of general jurisdiction for non-equity cases.587 That court hears cases in-
volving money disputes between businesses that could fall in the jurisdiction of

579. The Hon. R. Stanton Wettick: Effectively Handling Business And Other Complex Disputes, MET-
ROPOLITAN. CORP. COUNS., N.E. ed., May 2001, at 48 [hereinafter Wettick 2001 Interview].
580. Id.
581. The Hon. Robert Cindrich, A Quality Court Attracts Business To Pittsburgh, METROPOLITAN CORP.
COUNS., N.E. ed., July 2001, at 50. He is “involved in cases involving complex issues that businesses
care about in which only one party may be a business.” Wettick 2001 Interview, supra note 579.
582. Id.
583. Delaware’s Supreme Court is not addressed herein as a “business court,” but the frequency
with which it renders important rulings on the matters of corporate law that were first before the
Chancery Court mark its place as a pre-eminent “business court” in its own right. See, e.g., Smith v.
Van Gorkom, 488 A.2d 858 (Del. 1985). While only five percent of the Supreme Court’s cases are
business cases on appeal from Chancery, the precedential importance of many of those cases may
result in commanding twenty percent of the Supreme Court’s time. E. Norman Veasey, The Drama of
Judicial Branch Change in this Century, 17 DEL. LAW. 4, 5 (Winter 1999–2000), available at 17-WTR
DELAW 4, http://www.westlaw.com.
584. DEL. CODE ANN. tit. 10, § 341 (2002). Under section 342, “The Court of Chancery shall not
have jurisdiction to determine any matter wherein sufficient remedy may be had by common law, or
statute, before any other court or jurisdiction of this State.” Id. § 342. As discussed infra, the inclusion
of a new technology jurisdiction permits the Chancery Court to decide or mediate purely monetary
matters in some cases.
585. The Chancery Court’s five judges (one Chancellor and four Vice-Chancellors) handle approx-
imately 500 business cases a year, including “typical corporate cases—derivative, class actions, in-
junctions, internal corporate affairs, and the like.” The Drama of Judicial Branch Change in this Century,
supra note 583, at 5. These often complex and important cases constitute approximately 75 percent
of the Chancery Court’s case load. Id.
586. For example, in Anolick v. Holy Trinity Greek Orthodox Church, Inc., 787 A.2d 732 (Del. Ch.
2001), the court was faced with the issue of whether the plaintiff had an easement in an alley way.
While this case does not implicate, in the slightest, the issues popularly associated with the Delaware
Court of Chancery, the thoroughness and detail with which the case was considered, and the opinion
rendered, demonstrate a quality in decision making that is esteemed when considering the Chancery
Court as the premier business court.
587. O. Francis Biondi et al., The Commission on Delaware Courts 2000: A Work in Progress, 13 DEL.
LAW. 28 (Winter 1995), available at 13-WTR DELAW 28, http://www.westlaw.com.
The Creation and Jurisdiction of Business Courts in the Last Decade 217

developing business courts in other states.588 The Superior Court handles a sig-
nificant volume of commercial cases, is a national forum for commercial insurance
coverage disputes, spends significant time on complex civil litigation, and finds
major corporations as parties on its docket.589
The prestige of Delaware’s Chancery Court, i.e., the esteem in which it is widely
held, is an integral part of that court. The Chief Justice of the U.S. Supreme Court
celebrated the Chancery Court as “an important contributor to our national sys-
tem of justice.”590 He identified some of the sources for the Chancery Court’s
preeminence as the opportunity to obtain quick and effective action,591 expertise,
economies of scale that have lent themselves for efficiency, and “[p]erhaps most
importantly,” a refined body of law allowing businesses the prescience to avoid
suits.592
Lawyers have “praised the depth and precision of the written opinions gener-
ated by the Delaware Court of Chancery as that court’s greatest strength.”593 In
testifying before the Maryland Task Force studying implementation of a business
and technology court, Chancellor William Chandler left the Task Force with the
understanding that the Chancery Court’s “effectiveness” and “national reputation”
is “brought on by a thorough understanding of corporate issues.”594 This thor-
oughness includes mutual respect, collaborative effort and cooperation, Chancel-
lor Chandler also having testified that: “Members of the Court of Chancery also
discuss complex issues among themselves, and review opinions prior to release
to the parties and the public to insure consistency.”595
The Chancery Court is also a model because it represents high institutional
aspirations. The attention to detail, cooperation, and care in seeking a proper and
thoroughgoing result reflect a judicial body that commands respect because the
court and its judges demand that they give respect to the cases before them.
Although the rich history of an over 200 year old court cannot be duplicated, its

588. See, e.g., Edge of the Woods, L.P. v. Wilmington Sav. Fund Soc’y, 2001 Del. Super. LEXIS 304,
at *1 (Del. Super. Ct. Aug. 16, 2001) (“This case involves alleged breaches of loan agreements arising
out of years of commercial loan transactions and dealings between the Plaintiffs and the Defendant.”);
see also Outdoor Techs. v. Allfirst Fin., Inc., 2000 Del. Super. LEXIS 16 (Del. Super. Ct. Jan. 24, 2000);
Pfizer Inc. v. Advanced Monobloc Corp., 1999 Del. Super. LEXIS 330 (Del. Super. Sept. 2, 1999);
S&R Assocs., L.P., v. Shell Oil Co., 725 A.2d 431 (Del. Super. Ct. 1998).
589. Henry duPont Ridgely: The Superior Court, Offering an Ideal Forum for Resolution of Business
Disputes, METROPOLITAN CORP. COUNS., N.E. ed., Mar. 2001, at 45.
590. William H. Rehnquist, The Prominence of the Delaware Court of Chancery in the State-Federal
Joint Venture of Providing Justice, 48 BUS. LAW. 351, 354 (1992) [hereinafter Rehnquist].
591. Id. Chief Justice Veasey describes Chancery’s adjudicating a large stakes dispute, involving an
issue of New York contract law, in a matter of weeks; culminating in a fifty-five page opinion by
Chancellor Chandler issued five days after the 4 day plenary trial ended. The Hon. E. Norman Veasey—
An Efficient Court System: A Factor to Consider in Selecting a Business Location, METROPOLITAN CORP.
COUNS., N.E. ed., Mar. 2001, at 1. The losing trial counsel commended the expeditious and close
attention received in the Chancery Court. Id.
592. Rehnquist, supra note 590, at 354.
593. Focus on Business and Complex Courts, supra note 11.
594. Maryland Task Force, supra note 71, Appendix B, at 24.
595. Id.
218 The Business Lawyer; Vol. 60, November 2004

ethic and sense of responsibility can be emulated.596 One of the court’s greatest
Chancellors, Collin J. Seitz, Jr., made this essential point when asked about the
nationwide prominence of some of his Chancery decisions: “I don’t want to be
modest, but all cases are transitory. I would rather be remembered for fair treat-
ment in handling the cases rather than any particular case.”597

B. SUMMARY PROCEEDINGS IN THE SUPERIOR COURT


In 1993, Delaware’s Governor established a Commission on Major Commercial
Litigation Reform.598 The Commission recommended creating procedures for ex-
pediting resolution of business disputes.599 The recommendation was endorsed
by the Governor and General Assembly in 1994.600 The Joint Resolution of the
General Assembly observed the large number of corporations and financial insti-
tutions in the state, which came to the state in part because of the quality of
Delaware’s courts and their reputation for “swift and predictable judicial action.”601
The new procedures were recommended, and endorsed, in light of concerns over
the high costs and delays associated with litigation, including business and com-

596. One reads of the extraordinary groupings of judges like Cardozo’s New York Court of Appeals
or Hands’ and Thomas Swan’s Second Circuit, as kinds of golden ages; but it is not necessary for a
court to be extraordinary to be hardworking, fair, capable and effective.
It is further interesting to observe that these judges served on pre-eminent commercial courts. Judge
Posner observes that in the late 19th and for decades into the 20th Centuries, “[t]he New York Court
of Appeals was the nation’s premier commercial court.” RICHARD A. POSNER, CARDOZO: A STUDY IN
REPUTATION 129 (1993). The Second Circuit has been described as “the country’s leading commercial
court during the 1940s and 1950s . . . .” Margaret V. Sachs, Judge Friendly and the Law of Securities
Regulation: The Creation of a Judicial Reputation, 50 SMU L. REV. 777, 791 (1997). Judge Posner’s own
court has been studied as a commercial or corporate law court. Richard A. Booth, The Seventh Circuit
as a Commercial Court, 65 CHI.-KENT L. REV. 667, 672 (1989) (“There can be little doubt that the
Seventh Circuit has been a leader in the development of corporation and securities law. Some of the
very biggest names in the pantheon of Supreme Court cases have been reversals of Seventh Circuit
decisions. While some might regard that as embarrassing, it also indicates that the court has been
innovative. And this tendency predates the advent of Judges Posner and Easterbrook on the court by
several years.”).
597. Edmund N. Carpenter II, A Conversation with Judge Collins J. Seitz, Jr., 16 DEL. LAW. 24, 28
(Fall 1998) available at 16-FALL DELAW 24, http://www.westlaw.com (wherein one of Delaware’s
great lawyers interviewed one of its great judges). Justice Rehnquist’s piece on the Chancery Court
includes what “in the eyes of many . . . is the Court of Chancery’s ‘proudest accomplishment.’” Rehn-
quist, supra note 590, at 353. That accomplishment was “Chancellor Collins Seitz’ 1952 decision in
Belton v. Gebhart . . . . [where] Chancellor Seitz courageously held that black schoolchildren suffered
from state-imposed segregation.” Id. (footnote omitted). In the group of cases decided by the United
States Supreme Court three years later in Brown v. Board of Education, 349 U.S. 294 (1955), only Belton
was an affirmed decision. Id. at 301. The Delaware Supreme Court affirmed Chancellor Seitz’ decision,
though carrying out its own exhaustive analysis about whether the racially segregated schools were
equal or not. Belton v. Gebhart, 91 A.2d 137 (Del. 1952), aff ’d sub. nom., Brown v. Board of Educ.,
349 U.S. 294 (1955).
598. Supreme Court of Delaware, Administrative Directive No. 96, Feb. 28, 1994 (on file with The
Business Lawyer, University of Maryland School of Law).
599. Id.
600. Id.
601. Id.
The Creation and Jurisdiction of Business Courts in the Last Decade 219

mercial litigation.602 An expedited summary procedure in the Superior Court603 was


suggested for business and commercial cases in excess of $1,000,000.604 The ju-
diciary put these recommendations into effect in 1994.605
The new rules for summary proceedings were little used, and the jurisdictional
amount was subsequently changed from $1,000,000 to $100,000.606 Both the
Superior and Chancery Courts were encouraged to increase efforts at creating
mediation programs.607 Superior Court Rule 124 now provides for summary pro-
ceedings for cases within the Superior Court’s jurisdiction exceeding $100,000,
excluding personal, physical, or mental injury, where at least one party is a Dela-
ware citizen, corporation, or other business entity.608 In choosing the summary
proceeding process, parties surrender the ability to seek punitive damages or jury
trials.609 Since July 1997, there have only been four filings as summary proceed-
ings in the Superior Court.610
This effort nevertheless reflects Delaware’s active awareness of the importance
of specialized court programs to address unique business dispute needs, and the
nature of that need as part of an ongoing process. In 2001, Delaware Supreme
Court Chief Justice E. Norman Veasey observed that “Corporate decisionmakers
are very interested in, and carefully consider, the quality of the courts (and now
their technology) when choosing where to incorporate and to litigate.”611
[T]he conventional wisdom around the nation is that the expertise, stable
body of judicial decisions, prompt service and modern techniques of the
Court of Chancery, Supreme Court and Superior Court are largely credited
with maintaining Delaware’s preeminence as the corporate domicile of choice

602. Id.
603. Less widely known than Chancery, the Delaware Superior Court is the State’s trial court of
general, non-equity, jurisdiction. There has been increased national attention on the Superior Court
as Delaware’s “commercial litigation center for claims involving money damages.” Chief Justice E.
Norman Veasey, Problem Solving in Judicial Management, The State of the Delaware Judiciary, First
Session of the 141st General Assembly, May 1, 2001, at 6 [hereinafter 2001 State of the Judiciary] (on
file with The Business Lawyer, University of Maryland School of Law). Civil filings in Superior Court
went from 5,644 in 1990 to 9,523 in 2000. Id.
604. Id.
605. Administrative Directive No. 96, supra note 598.
606. See DEL. CT. R. 124–31 (2004).
607. Supreme Court of Delaware, Administrative Directive 117, April 1, 1998. Delaware Superior
Court Rule 16.1 addresses mediation and other ADR. DEL. CT. R. 16.1.
608. Summary Proceedings for Commercial Disputes, at http://courts.state.de.us/Courts/Superior
%20Court/ADR/ADR/summary_proc.htm (“The Superior Court has adopted rules and procedures
specifically designed to allow major commercial litigation to be resolved expeditiously and cost-
effectively.”).
609. Id.
610. Telephone interview with Ellen Davis, Civil Deputy in the Prothonotary’s Office of the Superior
Court of Delaware (Sept. 11, 2003). Summary Proceedings were initiated in July 1997, October 2000,
January 2001, and June 2001. These matters were resolved without trial. The limited number of
summary proceeding cases is reminiscent of the Milwaukee County Circuit Court’s efforts at estab-
lishing a voluntary summary proceeding process for business disputes, which did not attract sufficient
cases. See Appendix B, infra p. 275. The authors have not studied either phenomenon in detail;
however, one possibility is that if parties are seeking resolution in a business court, rather than, for
example, through private commercial arbitration or mediation, they may expect, or want, the full
panoply of court powers and jurisdiction to be available.
611. 2001 State of the Judiciary, supra note 603, at 6.
220 The Business Lawyer; Vol. 60, November 2004

for over 300,000 corporations, including a substantial majority of the For-


tune 500 companies. We cannot be smug, or take for granted this enormous
economic benefit. Other states are taking aggressive steps to compete with
Delaware by improving their business courts with the goal of attracting in-
corporations, businesses, and business litigation to their states. We need to
maintain our competitive national position as well to continue to enhance
the trust and confidence of our residents.612

C. CREATION OF TECHNOLOGY COURT JURISDICTION WITHIN


THE CHANCERY COURT
On May 29, 2003, Delaware expanded the Court of Chancery’s jurisdiction to
include technology disputes613 of greater than one million dollars.614 Delaware’s
Governor Ruth Ann Minner actively sought a technology court in Delaware.615
This was in line with one of the top recommendations of her Strategic Economic
Council as a means to promote economic growth.616 The Governor perceived the
new technology court as joining “two of the mainstays of Delaware’s economy—
technology development and the expert and efficient dispute resolution provided
by Delaware’s courts . . .”617 Delaware Senate Bill 58 creating such jurisdiction
within the Chancery Court was introduced on April 1, 2003, passed the Senate
on April 3, 2003 and the House on May 14, 2003; in both instances without any
negative votes. It was signed into law by Governor Minner in late May 2003.618
Under Delaware Code, title 10, section 346(a), the Chancery Court has been
given the power “to hear and determine technology disputes” if, among other
criteria, the parties agree to that jurisdiction.619 This is a significant change in

612. Id. at 11. There is considerable debate as to whether business courts are being developed to
attract incorporations as such, rather than to simply keep or attract business operations. See, e.g.,
Marcel Kahan & Ehud Kamar, The Myth of State Competition in Corporate Law, 55 STAN. L. REV. 679
(2002).
613. Under DEL. CODE ANN. tit. 10, § 346(c)(1) (Supp. 2004), technology dispute includes,
the purchase or lease of computer hardware; the development, use, licensing or transfer of com-
puter software; information, biological, pharmaceutical, agricultural or other technology of a
complex or scientific nature that has commercial value, or the intellectual property rights per-
taining thereto; the creation or operation of Internet web sites; rights or electronic access to
electronic, digital or similar information; or support or maintenance of the above.
Under section 346(c)(3), the nature of a “technology dispute” is to be interpreted liberally. See Ap-
pendix. A, infra pp. 229–30 for full statutory text.
614. DEL. CODE ANN. tit. 10, § 346(a)(5). See Appendix A, infra p. 230.
615. Darrel W. Cole, Technology Court Could Place Delaware Courts at Top, DEL. L. WKLY., Feb. 5,
2003, at D1.
616. New Law Expands Del. Chancery Court Jurisdiction to Technology Cases, DEL. CORP. LITIG. REP.,
June 9, 2003, at 11.
617. Id.
618. Sean O’Sullivan, Chancery Court Expands: New Rules Designed to Attract More Business to State,
NEWS J., May 30, 2003, available at http://www.delawareonline.com/newsjournal/local/2003/05/30
chancerycourtex.html.
619. DEL. CODE ANN. tit. 10, § 346(a). Neither punitive damages nor a jury trial are available for
parties choosing to litigate a technology dispute in the Court of Chancery. Id. See Appendix A, infra
pp. 229–30.
The Creation and Jurisdiction of Business Courts in the Last Decade 221

Chancery Court jurisdiction because it includes jurisdiction to hear and decide


solely monetary disputes that fall into the technology category, which includes
matters involving computer hardware and software, Internet disputes, and “in-
formation, biological, pharmaceutical, agricultural or other technology of a com-
plex or scientific nature that has commercial value, or the intellectual property
rights pertaining thereto . . . .”620 The term technology dispute is to be given a
liberal interpretation.621
As set forth above, the 1998 administrative directive from the Supreme Court
directed the Superior and Chancery Courts to vigorously pursue mediation pro-
grams, and the Chancery Court drafted an elaborate rule to that affect, Chancery
Court Rule 174.622 In creating the Chancery Court’s new technology jurisdiction,
further provision for mediation was created,623 including the mediation of solely
monetary business disputes with at least $1,000,000 at issue.624 Again, this is by
the parties’ choice, so the parties could elect mediation options that do not
include adjudication.625 Unlike section 346, which expands the Chancery’s abil-
ity to adjudicate non-equity matters in technology cases, section 347 empowers
the Chancery to mediate business disputes, without the limitation that they be
technology business disputes.626 “This mediation option will provide a new type
of service to Delaware businesses, at a time when businesses are more interested
than ever in cost-effective and confidential methods to resolve litigable contro-
versies consensually.”627
Section 347 does not limit the Superior Court’s jurisdiction, but it gives the
parties defined options to choose the Chancery Court, which is “expert in han-
dling business matters.”628 Technology disputes may often center on commercial
relationships that require rapid decision on issues of great complexity; and many
will involve injunctions or specific performance which fall into Chancery’s tra-
ditional function.629
Senator Adams’ legislative synopsis to sections 346 and 347 explains the new
Act’s goal: “The State of Delaware wishes to remain preeminent in its ability to
meet the needs of its business community, including the needs of all business
entities domiciled in Delaware.”630 The new Act is intended to:
permit businesses to have the certainty that any future technology disputes
that arise between them may be heard in the Court of Chancery. Thus, the

620. DEL. CODE ANN. tit. 10, § 346(c).


621. Id. § 346(c)(3).
622. Administrative Directive 117, supra note 607; DEL. CT. R. 174 (2004).
623. DEL. CODE ANN. tit. 10, § 346(a).
624. See id. § 347; Appendix A, infra p. 231.
625. DEL. CODE ANN. tit. 10, § 346(d).
626. Id. § 347. The Synopsis to the Act states: “Consistent with the overall objectives of the Act,
the Act also enables the Court of Chancery, by rule, to permit parties to request mediation in order
to resolve high-stakes, complex business disputes.” S. 58, 142nd Gen. Assem. (Del. 2003).
627. Id.
628. Id.
629. Id.
630. Id.
222 The Business Lawyer; Vol. 60, November 2004

Act enables businesses, at least one of which is domiciled in Delaware, to


contract to have any future technology disputes between them to be adju-
dicated in the Court of Chancery.631
This puts expression to the Court of Chancery’s well-recognized preeminence for
legal stability and expertise in business matters that brings businesses to incor-
porate, and litigate, in Delaware.632
Delaware’s Legislature has the authority to enact statutes expanding the Court
of Chancery’s jurisdiction beyond equity’s traditional bounds.633 This has pro-
vided the means to expand Chancery’s availability to resolve corporate governance
disputes, and the option to center more of these disputes in Chancery.634 The
jurisdictional breadth created by title 10, sections 346 and 347, reflects an ex-
pansion into broader business and commercial disputes, not merely in traditional
equity cases or in equity matters where the court has ancillary jurisdiction over
legal matters that may arise therein.635 Delaware’s Legislature has taken steps to
create a qualitatively broader jurisdiction in the Chancery Court by including
commercial court type legal claims solely based upon money damages. This pro-
vides a new specialized jurisdiction for a court that already has the most respected
level of specialization and expertise in equity based business disputes.636

631. Id.
632. “In sum, the Act provides additional benefits for businesses choosing to domicile in Delaware.
It seeks to keep Delaware ahead-of-the curve in meeting the evolving needs of businesses, thus
strengthening the ability of the State to convince such businesses to incorporate and locate operations
here.” Id.; see also July 2003 Archives, Legislation Aims to Bring More Tech Cases to State, BUS. LEDGER
( July 2003), available at http://www.ncbl.com/archive/07-03law.html (“The legislation, part of Min-
ner’s legislative agenda for 2003, strengthens the Delaware Court of Chancery’s place as a venue for
corporate litigation and will likely have an economic impact on Delaware due to additional corporate
litigation taking place in Wilmington.”).
633. See Clark v. Teeven Holding Co., 625 A.2d 869 (Del. Ch. 1992), observing that the Court of
Chancery has the same jurisdiction that the English High Court of Chancery had in 1776, but that
such jurisdiction could be expanded by recognition of new rights, recognition of injunctive powers,
and by the passage of statutes, e.g., DEL. CODE ANN. tit. 8, § 225 (Repl. Vol. 1999) “granting authority
to Court of Chancery to adjudicate results of corporate elections.” Clark, 625 A.2d at 875–76. Other
examples of the Legislature expanding jurisdiction through statute are section 111, providing that
“[a]ny action to interpret, apply or enforce the provisions of the certificate of incorporation or the
bylaws of a corporation may be brought in the Court of Chancery,” and section 220 regarding stock-
holders rights to compel inspection of corporate books and records. DEL. CODE ANN. tit. 8, §§ 111,
220. Under section 145, the Court of Chancery has exclusive jurisdiction to make a fairness deter-
mination as to whether a corporation can indemnify officers and directors who are found liable to
that corporation. Id. § 145.
634. Email from Professor Lawrence Hamermesh to Lee Applebaum, Esquire (Oct. 2, 2003) (on
file with authors).
635. The Court of Chancery can exercise jurisdiction over claims for money damages or declaratory
relief, where there are also claims for equitable relief over which it has jurisdiction, for example, an
injunction. See, e.g., Kerns v. Dukes, 707 A.2d 363, 368 (Del. 1998).
636. During the first six months after the statute’s enactment, the technology based jurisdiction
had not been used to bring new litigation, but at least one matter had gone to mediation. Josy W.
Ingersoll & Matthew P. Denn, Delaware Debuts Technology Court, Mediation State Remains on Cutting
Edge in Handling Business Disputes, DEL. L. WKLY., Feb. 25, 2004, at D5. As of June 18, 2004, three
cases had gone to mediation under section 347. Email from Chancellor William B. Chandler III of the
Delaware Court of Chancery to Lee Applebaum, Esquire ( June 18, 2004) (on file with authors). In
light of the jurisdictional amount at issue, and the specific nature of the type of claims permitted
under section 346, it will likely take some time to take measure of that statute’s use.
The Creation and Jurisdiction of Business Courts in the Last Decade 223

XVIII. JURISDICTIONAL COMPARISONS


Generally, two basic jurisdictional patterns emerge in existing or proposed busi-
ness courts: (i) inclusion of all cases that fall within explicitly defined case types;
or (ii) inclusion only of complex cases or cases with novel legal issues (the reso-
lution of which will have a broadly instructive effect), with the virtually automatic
inclusion of a very limited number of case types, such as shareholder derivative
suits.637 This second approach typically involves more judicial involvement and
scrutiny as to what cases will and will not be heard in the business court.638

A. BROAD JURISDICTION BUSINESS COURTS


Although New York County’s Commercial Division currently has a $125,000
jurisdictional minimum,639 some provisions requiring that a matter be compli-
cated,640 and provision that cases may be culled based upon the court’s case
load,641 it is the model for the first type of jurisdiction. Thus, thousands of cases
are filed in the Commercial Division annually. Cook County’s Commercial Cal-
endar, which itself is approaching 4,500 annual filings, Philadelphia’s Commerce
Program, and now Orlando’s Business Court, have a similar design.642 Colorado’s
Business Committee would likewise have adopted an approach of presumptively

637. The Delaware Court of Chancery certainly provides another model, but it does not appear
that other jurisdictions are looking to establish an equity court model for their business courts; at
least where a Chancery Division does not already exist. (As set forth supra, New Jersey is experimenting
in four Counties by assigning all complex business cases to Chancery judges.) On a more fundamental
level, however, the Delaware Court of Chancery sets forth the basic concept that a business court
should address a large number of business disputes via a highly capable set of judges hearing individual
cases from beginning to end.
638. The AEQUITAS, Inc., Georgia Feasibility Study refers to this as the “Gatekeeper” function and
recommends it for Georgia. AEQUITAS, Inc., Georgia Feasibility Study, supra note 120, at 15. Courts
with lists of specific case types can include judicial review of whether cases do or do not come within
the specified criteria, and this can include judicial intervention to determine what falls within the
specified criteria. This appears to be a much more black-and-white process, however, than determining
whether a case, even a dispute between two businesses, is sufficiently complex or important. Further,
there are some complex type courts where the lawyer first designates the case, subject to judicial
review.
639. Jurisdictional amounts perform a filtering function, reflecting a pre-made generalized judg-
ment about case volume management, rather than the case by case measure of complexity factors. In
Philadelphia’s Court of Common Pleas all matters below $50,000 must go to arbitration. In Cook
County, there is only a $30,000 limit, but the fact that business disputes sounding in equity go to the
Chancery Division limits the Commercial Calendar’s sizable case volume. Erie County, New York
provides a $25,000 minimum with the express qualification that the amount may be changed de-
pending on the case load. New York County itself encourages electronic filing by reducing the juris-
dictional amount to $25,000, and expanding cases types. See supra notes 60–61.
640. E.g., in commercial real property transactions and environmental insurance coverage litigation.
641. See Appendix A, infra p. 248 (“Due to caseload considerations, the Justices of the Division
are empowered to transfer out of the Division cases which, in their judgment, do not fall within this
category notwithstanding that a party has described the case as ‘commercial’ on the Request for Judicial
Intervention.”).
642. Cook County’s Chancery Division, like New Jersey’s Chancery Division or Delaware’s Chan-
cery Court, must hear cases that fall within its jurisdiction; putting aside the issue of mixed questions
of law and equity for present purposes. The new Delaware Court of Chancery jurisdiction in tech-
nology cases is discussed above.
224 The Business Lawyer; Vol. 60, November 2004

including all cases within defined categories, without a complexity or other se-
lection component beyond type.643
As reflected in the descriptions above, and in more detail in Appendix A, courts
listing jurisdiction by case type vary in the length of the list, and in specificity.
Although Florida’s Ninth Judicial Circuit’s recent order establishing a business
court subdivision expressly includes U.C.C. transactions between businesses within
the new court’s jurisdiction,644 Colorado’s proposed list states more broadly, “Com-
mercial transactions not involving a consumer party.”645 Colorado’s broad language
encompasses a U.C.C. dispute between businesses, but also encompasses a broader
array of specific disputes, that would also be in the Florida court’s list. Thus, it
is not fully possible to do a one-to-one mapping of what types of claims are or
are not in comparable business court programs because there is no uniform no-
menclature; however, a close look at each shows a virtual identity in the significant
majority of case types.
In courts without a complexity requirement (including those courts such as
Massachusetts Superior Court that include some case types without an additional
express complexity requirement), the following subject areas are common or
almost always common among the business courts:646 intracorporate type gover-
nance disputes (whether for corporations, non-profits, partnerships, joint ventures,
etc.); corporate sales/purchases; securities transactions; shareholder derivative ac-
tions; corporate officer and director liability; U.C.C.; non-compete/restrictive cov-
enant agreements; unfair competition and antitrust; trade secrets; interference
with contractual or business relationships; fraud/misrepresentation in business
contract context; sales of goods or services between businesses; non-consumer
bank transactions; and insurance or indemnification disputes where the under-
lying action involves a business dispute and the insurance policy at issue is com-
mercial. Most, if not all, of these courts will also expressly hear intellectual prop-
erty matters, business matters involving sales of good or services, and commercial
class actions.
Some of these courts will also hear malpractice actions brought by businesses,
but the professionals included within the scope of those claims differ. For ex-
ample, New York County and Nassau County expressly include malpractice ac-
tions against accountants and actuaries and exclude lawyer malpractice; Monroe
County will not hear medical, legal, or accounting malpractice; Erie County will
hear professional malpractice claims other than legal or medical; and Albany
County is silent as to both including or excluding malpractice claims.647 Florida
includes “[m]alpractice claims involving business enterprises and attorneys, ac-
countants, actuaries, architects, or other professionals in connection with the ren-

643. Colorado Report, supra note 72, at 12.


644. Administrative Order No.: 2003-17, In the Circuit Court of the Ninth Judicial Circuit in and
for Orange County, Florida, June 26, 2003 at II.B.1. See Appendix A, infra p. 233.
645. See Appendix A, infra p. 229 (Colorado Report excerpt).
646. This is also said with the understanding that the Cook County Commercial Calendar does
not hear business disputes seeking equitable relief, e.g., enforcement of non-compete agreements,
internal corporate governance disputes, etc.
647. See Appendix A, infra pp. 248–60.
The Creation and Jurisdiction of Business Courts in the Last Decade 225

dering of professional services to the business enterprise,” and Massachusetts sim-


ilarly has a presumptive category for “malpractice claims brought by business
enterprises and not-for-profit institutions against professionals relating to render-
ing of professional service.”648 In light of the New York Commercial Division’s
long history before expansion into new counties, and in light of the available
information on business courts possessed by the Massachusetts and Florida
courts, these differences demonstrate the different needs and/or different opinions
held as to what should be included in a business court’s jurisdiction and not some
haphazard array.
Other categories that are found in more than one court include surety bonds
(Florida and Philadelphia); franchise disputes (Florida, Illinois, Albany County,
Kings County, Westchester County, Philadelphia); some types of employment dis-
putes (Cook County, Albany County, Erie County, Kings County, Monroe County,
Westchester County); and business disputes involving commercial leases or pur-
chase/sale/lease/security interests in real or personal property (Florida, Philadel-
phia, Cook County, Albany County, Nassau County, Westchester County, Michi-
gan Cyber Court; and New York County, Suffolk Counties, Massachusetts, and
Rhode Island, if complicated or complex).

B. COMPLEX JURISDICTION BUSINESS COURTS


North Carolina’s Business Court is a model for the second type of jurisdiction,
focusing on the business or commercial case’s complexity. Cases must be rec-
ommended and then meet with the Chief Justice of the Supreme Court’s approval
to become Business Court cases.649 Inclusion is based upon complexity; the pres-
ence of a novel legal issue, the resolution of which has broader implications; and/
or whether the cases fall within certain statutory areas of North Carolina business
law where decisions will provide guidance to North Carolina businesses on cor-
porate governance issues.650 In the typical commercial case under the U.C.C. or
for a business tort, however, the case will not come before the Business Court,
absent complexity or a cutting edge legal issue.
A complexity component is also included in New Jersey’s Complex Commercial
tracking designation (in both the more specialized Bergen and Essex County pro-
grams, as well as state-wide), and in the Maryland Business and Technology Case
Program, though the lawyers first designate the case as complex in New Jersey.
Massachusetts’ Business Litigation Session has a presumptive list of case types,
but also includes a complexity component within that presumptive list. Thus,
although shareholder derivative claims are presumptively included, breach of con-
tract or business tort cases are included only “if they have complex factual or legal
issues or are likely to require complex case management . . . .”651 The Georgia

648. Id at 233, 242.


649. Id. at 264.
650. Id. at 264–65. In light of new recommendations, North Carolina may increase the number of
presumptive categories for business court cases. See supra note 184.
651. Massachusetts Order, supra note 278.
226 The Business Lawyer; Vol. 60, November 2004

Feasibility Study recommends a model assigning only complex business cases and
selected cases dealing with novel legal theories to the business court as well.652

C. OTHER JURISDICTIONAL MANAGEMENT


Rhode Island does not have a complexity requirement, but Judge Silverstein
must approve any case coming onto the Business Calendar. The Nevada Rules list
some presumptive case types and permit the Judges to hear a wider range of cases
within their discretion, if they believe those cases would benefit from enhanced
case management, indicating an emphasis on complex litigation. In Nevada, it is
counsel that seeks a business court assignment in the first instance, subject to
judicial review.
Delaware has created a voluntary jurisdiction in Chancery if one party is from
Delaware, a technology dispute is at issue, and over one million dollars is at stake.
Michigan’s Cyber Court jurisdiction is likewise voluntary, but provides a general
description within that jurisdiction by case types, where the dispute exceeds
$25,000.653 In both instances, if the criteria are met, and the parties choose that
jurisdiction, then there is no further judicial filtering analysis required as to the
complexity of the case or novelty of the legal issue.
As set forth in section XVI above, California, Connecticut, and Arizona have
chosen to pursue the development of courts for “complex civil litigation” and not
to create business or commercial courts.654 These complex civil courts will hear
complex business disputes, but exclude “business and commercial litigation that
is managerially uncomplicated.”655

D. JURISDICTIONAL OBJECTIVES
A court’s jurisdictional parameters depend upon the objectives to be achieved
in creating a business court, and available resources. As stated above, Colorado’s
Business Court Committee recommended the broader type of jurisdiction on the
basis that: “Defining what constitutes a ‘commercial case’ is fundamental to the
operation of a business court. While the court will be particularly suitable for

652. AEQUITAS, Inc. Georgia Feasibility Study, supra note 120, at 12–13. (“Best practice for a new
business court is tight focus on only complex business cases and selected business cases with novel
legal issues.”).
653. MICH. COMP. LAWS ANN. § 600.8005 (West Supp. 2004).
654. The California Standards of Judicial Administration for Complex Litigation define complex
litigation as “those cases that require specialized management to avoid placing unnecessary
burdens on the court or the litigants.” The scope of this definition is immediately qualified,
in that the Standards go on to state that complex litigation “is not capable of precise definition”
and that it “may involve multiple . . . related cases, extensive pretrial activity, extended trial
times, [and] difficult or novel issues.” The Standards state further that “no particular criterion
is controlling and each situation must be examined separately.”
Scott A. Steiner, The Case Management Order: Use and Efficacy in Complex Litigation and the Toxic Tort,
6 HASTINGS W.-N.W. J. ENVT’L L. & POL’Y 71, 74 (1999) (footnotes omitted). A complex litigation
format is also followed in Pittsburgh and a majority of New Jersey’s counties.
655. Focus on Business and Complex Courts, supra note 11.
The Creation and Jurisdiction of Business Courts in the Last Decade 227

complex cases, commercial cases of all levels of complexity will benefit from
adjudication by experienced business jurists.”656
This analysis reflects an objective that all business/commercial disputes be
heard, at every step of the process, by judges who specialize in hearing business
and commercial cases. Judges hearing these cases will continuously develop ex-
perience and knowledge in the substantive law; and in the process of writing
opinions, they may develop a body of law for broad guidance in the community.
They will also develop a variety of case management skills to address the cases
before them. For example, business courts include a significant number of plain-
tiffs seeking temporary restraining orders and preliminary injunctions that call for
the rapid address of often difficult matters, as well as cases posing long-term
complex legal and procedural matters. In between these temporal extremes, these
judges will presumably develop a greater facility in managing and resolving stan-
dard commercial disputes, as well.
The complex business court provides litigants with both judges that have ex-
pertise in business and commercial law, and judges and courts that are constantly
developing their skill and resources in complex case management. It provides
added focus to give full address to the most complex cases, while removing those
cases as impediments to the expeditious resolution of other cases on a court’s
overall docket. The complex business court can also establish a body of law by
rendering opinions that give guidance beyond its courtroom. Thus, with this
guidance, future business cases may be resolved more simply and expeditiously
without the need for specialized complex address. In such circumstances, the
complex court has already wrestled with and determined the issue, and reduced
it from a complex to a manageable form.
A common factor in both business court models is the principle that judges be
knowledgeable in resolving business and commercial disputes (with the addition
of technology disputes arising more recently). This distinguishes both models
from the pure complex litigation court model, where the focus is more upon the
judge’s and court’s ability to capably manage a complex case in terms of efficiency
and procedure, with less emphasis on the subject matter. Although it is likely that
certain types of cases will repeat in the more generalized complex litigation courts,
the functional ability to manage cases properly will not necessarily increase the
ability to address substantive issues more fully. As stated in Georgia’s Feasibility
Study on establishing a business court, the idea of a mixed complex litigation
court dilutes the primary purpose of addressing business law issues.657 Under this

656. Colorado Report, supra note 72, at 12.


657. AEQUITAS, Inc., Georgia Feasibility Study, supra note 120, at 10 (“The long-term assignment
of judges to [complex civil litigation divisions] fosters judicial commercial expertise, except that both
[California and Connecticut] divisions have burgeoning mass torts and class actions, which dilute the
commercial case law experience.”); id. at 12–13 (“Dilution of focus by expanding jurisdiction to equity
or other complex civil cases undermines the court’s primary purpose.”). The NCSC Evaluation uses
statistics showing that commercial cases only amount to approximately 25 percent of the complex
case load, to support the proposition that the complex court pilot program had not become a “bou-
tique” court for business. NCSC Evaluation, supra note 497, at 47. The perception reflected in this use
228 The Business Lawyer; Vol. 60, November 2004

theory, even if the disposition time of cases or case management efficiencies were
similar between a complex court and a business court, a jurisdiction with an
objective of maximizing the development of judicial business expertise would not
achieve that goal by adopting a mixed complex litigation model.658

XIX. CONCLUSION
Ultimately, a successful business court depends in each instance on the actual
judge hearing business court cases. Judges presented daily with a field of law in
which to cultivate their understanding, knowledge, and ability are more likely to
come to deeper understandings about the inner workings of the legal principles
they face; the patterns that may reveal themselves in the conduct of business
cases; and the patterns of thinking and behavior that may appear in parties and
counsel. The judge without that experience, faced with business disputes, typi-
cally may have to rely upon a less developed understanding of these factors in
rendering decisions.659

of language, not limited to California, is a source of debate which has not ultimately prevented some
jurisdictions from finding that developing judicial specialization in business/commercial courts has a
benefit that serves a broad community of interests worth addressing.
658. As set forth above, New Jersey has a complex commercial track in every one of its counties,
but in only two counties, Essex and Bergen, is there a single judge hearing all complex commercial
cases. See supra notes 205–206 and accompanying text. Court statistics show that, in the Court Year
for 2002, Middlesex County had thirty-nine complex commercial track cases filed, twenty-three re-
solved with a median disposition time of 187 days. During the 2003 court year, forty-nine complex
commercial track cases were filed—more than in any other New Jersey County—twenty-two were
resolved, with a median disposition time of 308 days. See supra notes 229, 235. These numbers are
comparable in many ways to the same categories and figures for Essex and Bergen Counties. Having
practiced in New Jersey’s Superior Court, the authors are also aware of the fine quality of judges on
that court. Still, for the jurisdiction seeking to create a business court, the presence of quality judges
who can manage difficult cases capably does not necessarily provide the continually growing and
evolving level of experience and knowledge concerning substantive business and commercial matters
which is a key component in creating such programs.
659. The fact that same judge or set of judges is deciding cases within a specialized jurisdiction
does not, in our view, inexorably lead to a false stability and predictability in the form of biased
opinion followed by cookie cutter application of precedent. The specialized court is an opportunity
for the opposite phenomenon; an enriched understanding and a cultivated application of precedent
and growth of the law.
The Creation and Jurisdiction of Business Courts in the Last Decade 229

APPENDIX A

WRITTEN PARAMETERS OF
BUSINESS COURT JURISDICTION

COLORADO (Proposal of Business Committee, not Implemented)


Colorado’s Business Committee reported its recommendations as follows:
After extensive consideration of these issues, and a review of the experience in
other states, the Committee defined categories of cases it believes are suitable for
filing in the business court. Those categories include disputes involving:
a. The rights, duties, or liabilities of equity owners, managers, or agents of any
form of business entity;
b. The formation, sale or purchase, or merger or conversion of any form of
business entity;
c. Conduct invoking antitrust laws or law governing unfair competition or
interference with business or contractual relations; or agreements or ar-
rangements among businesses, or between businesses and their agents or
employees restraining competition;
d. Commercial transactions not involving a consumer party; or
e. Intellectual property.
While some of these disputes involve the application of statutory rights, the
majority require analysis of consensual relationships and the application of con-
tractual and fiduciary principles or of concepts of property.
Cases involving the rights and duties of employers and employees under State
or Federal statutes are not proposed for inclusion as “commercial cases” in the
pilot project stage. Although closely debated, the Committee believes the number
of such cases is likely to overwhelm the business court, thereby depriving it of
the opportunity to prove its worth in handling of the types of cases listed above.
Furthermore, such statutorily based cases do not necessarily draw on the same
learning and expertise in judges and lawyers as the proposed categories of cases.
Report of the Committee on Business Courts to Governor’s Task Force on Civil
Justice Reform, at 12-13, available at http://www.state.co.us/cjrtf/report/report.
htm (last visited on Oct. 7, 2004).

DELAWARE
Delaware Code title 10, section 346.
Technology Disputes.
(a) Notwithstanding any other provision in this Code, and without limiting the
jurisdiction vested in any court in this State, the Court of Chancery shall have
power to mediate and jurisdiction to hear and determine technology disputes
as defined herein when:
230 The Business Lawyer; Vol. 60, November 2004

(1) The parties have consented to the jurisdiction of or mediation by the


Court of Chancery by agreement or by stipulation;
(2) At least one party is a “business entity” as defined herein;
(3) At least one party is a business entity formed or organized under the laws
of this State or having its principal place of business in this State;
(4) No party is a “consumer,” as that term is defined in § 2731 of Title 6,
with respect to the technology dispute; and
(5) In the case of technology disputes involving solely a claim for monetary
damages, the amount in controversy is no less than $1,000,000 or such
greater amount as the Court of Chancery determines by rule.
Neither punitive damages nor a jury trial shall be available for a technology
dispute heard and determined by the Court of Chancery pursuant to this
section. Mediation proceedings shall be considered confidential and not of
public record.
(b) A “business entity” means a corporation, statutory trust, business trust or
association, a real estate investment trust, a common-law trust, or any other
unincorporated business, including a partnership (whether general (including
a limited liability partnership) or limited (including a limited liability limited
partnership)) or a limited liability company.
(c) (1) A “technology dispute” means a dispute arising out of an agreement and
relating primarily to: the purchase or lease of computer hardware; the
development, use, licensing or transfer of computer software; informa-
tion, biological, pharmaceutical, agricultural or other technology of a
complex or scientific nature that has commercial value, or the intellectual
property rights pertaining thereto; the creation or operation of Internet
web sites; rights or electronic access to electronic, digital or similar in-
formation; or support or maintenance of the above.
(2) The term “technology dispute” does not include a dispute arising out of
an agreement:
a. That is primarily a financing transaction; or
b. Merely because the parties’ agreement is formed by, or contemplates
that communications about the transaction will be by, the transmission
of electronic, digital or similar information.
(3) The Court shall interpret the term “technology dispute” liberally so as to
effectuate the intent of this section to provide an expeditious and expert
forum for the handling of technology disputes involving parties who have
agreed to resolve their disputes in the Court of Chancery, whether the
parties are seeking to have the Court of Chancery:
a. Mediate the dispute only;
b. Mediate the dispute initially, and if that fails, adjudicate the dispute;
or
c. Adjudicate the dispute.
The court shall adopt rules to facilitate the efficient processing of tech-
nology disputes, including rules to govern the filing of mediation only
technology disputes, and to set filing fees and other cost schedules for
the processing of technology disputes.
The Creation and Jurisdiction of Business Courts in the Last Decade 231

Delaware Code title 10, section 347.


Mediation Proceedings for Business Disputes.

(a) Without limiting the jurisdiction of any court of this State, the Court of Chan-
cery shall have the power to mediate business disputes when:
(1) The parties have consented to the mediation by the Court of Chancery
by agreement or by stipulation;
(2) At least one party is a business entity as defined in § 346 of this title;
(3) At least one party is a business entity formed or organized under the laws
of this State or having its principal place of business in this State;
(4) No party is a consumer, as that term is defined in § 2731 of Title 6, with
respect to the business dispute; and
(5) In the case of disputes involving solely a claim for monetary damages,
the amount in controversy is no less than one million dollars or such
greater amount as the Court of Chancery determines by rule.
A mediation pursuant to this section shall involve a request by parties to have
a member of the Court of Chancery, or such other person as may be author-
ized under rules of the Court, act as a mediator to assist the parties in reaching
a mutually satisfactory resolution of their dispute. Mediation proceedings
shall be considered confidential and not of public record.
(b) By rule, the Court of Chancery may define those types of cases that are eligible
for submission as a business dispute mediation. This section is intended to
encourage the Court of Chancery to include complex corporate and com-
mercial disputes, including technology disputes, within the ambit of the busi-
ness dispute mediation rules. The Court of Chancery should interpret its rule-
making authority broadly to effectuate that intention.

FLORIDA
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
IN AND FOR ORANGE COUNTY, FLORIDA

ADMINISTRATIVE ORDER
NO.: 2003-17-1

AMENDED ORDER CREATING SPECIALIZED BUSINESS COURT


SUB-DIVISION OF THE CIVIL DIVISION OF THE CIRCUIT COURT

WHEREAS, specialization is common in almost every profession including the


law and it is increasingly common for lawyers to narrow and focus their practices
and increase their mastery of distinct substantive areas of the law; and
WHEREAS, specialization within the legal profession has resulted in the more
efficient delivery of high quality legal services in complex matters; and
WHEREAS, this Circuit has long recognized the need for specialized courts to
deal effectively with diverse matters including criminal law, juvenile justice, do-
mestic relations, probate and drugs; and
232 The Business Lawyer; Vol. 60, November 2004

WHEREAS, the litigation and resolution of complex business, corporate and


commercial disputes has become an area of specialization within the legal pro-
fession; and
WHEREAS, a court that consistently hears business, corporate and other com-
mercial disputes can be expected to develop expertise, experience and knowledge
enabling it to perform its functions more proficiently, rapidly and confidently;
and
WHEREAS, a business Court will provide consistency and predictability to
litigants and counsel;
WHEREAS, these cases often require a high degree of case management in-
cluding the handling of discovery disputes and motion practice wherein the ser-
vices of a Special Master would be beneficial; and
WHEREAS, the more efficient handling of these cases will free judicial resources
to handle other important matters; and
WHEREAS, the decisions in these cases oftentimes impact not only the litigants
but numerous persons throughout our community including employees, share-
holders, partners, creditors and suppliers; and
WHEREAS, the establishment of a Business Court may become one more factor
in helping our community to attract new businesses that are looking to re-locate;
and
WHEREAS, the need for a Business Court has been studied by the Ninth Ju-
dicial Circuit Business Court Committee and it has passed its resolution urging
the establishment of a Business Court; and
WHEREAS, a review of the current case load in the Civil Division of the Circuit
Court in Orange County, Florida indicates that there are more than 3,000 cases
currently pending that are suited for referral to a Business Court;
NOW, THEREFORE, I, Belvin Perry, Jr., pursuant to the authority vested in me
as Chief Judge of the Ninth Judicial Circuit of Florida under Florida Rule of
Judicial Administration 2.050, Order that:

I. Business Court Established. Effective January 2, 2004, the Business Court


Sub-Division of the Civil Division of the Circuit Court of the Ninth Judicial
Circuit of Florida is hereby established to hear complex business cases, as
hereinafter defined.
II. Cases Subject to Business Court. The principles set out below shall guide
the parties and the Court in the designation of cases for the Business Court.
Notwithstanding anything to the contrary in any prior general Administra-
tive Order or Court procedure, all jury, non-jury, injunction and class action
cases filed on or after December 1, 2003 shall be assigned to the Business
Court if they are among the following types of actions:
A. Actions relating to the internal affairs or governance, dissolution or li-
quidation rights or obligations between or among owners (shareholders,
partners, members), or liability or indemnity of managers (officers, di-
rectors, managers, trustees, or members or partners functioning as man-
agers) of corporations, partnerships, limited partnerships, limited lia-
The Creation and Jurisdiction of Business Courts in the Last Decade 233

bility companies or partnerships, professional associations, business


trusts, joint ventures or other business enterprises;
B. Disputes between or among two or more business enterprises relating
to transactions, business relationships or contracts between or among
the business enterprises, including the following examples:
1. Uniform Commercial Code transactions;
2. Purchases or sales of businesses or the assets of businesses;
3. Sales of goods or services by or to business enterprises;
4. Non-consumer bank or brokerage accounts, including loan, deposit,
cash management and investment accounts;
5. Surety bonds;
6. Purchases or sales or leases of, or security interests in, commercial,
real or personal property; and
7. Franchisor/franchisee relationships;
C. Actions relating to trade secret or non-compete agreements;
D. “Business torts,” such as claims of unfair competition, or interference
with contractual relations or prospective contractual relations;
E. Actions relating to intellectual property disputes;
F. Actions relating to securities, or relating to or arising under the state
securities laws or antitrust;
G. Shareholder derivative actions and class actions based on claims other-
wise falling within these types, and consumer class actions other than
personal injury and products liability claims;
H. Actions relating to corporate trust affairs;
I. Malpractice claims involving business enterprises and attorneys, ac-
countants, actuaries, architects, or other professionals in connection
with the rendering of professional services to the business enterprise;
J. Declaratory judgment actions brought by insurers, and coverage dis-
putes and bad faith claims brought by insureds, where the dispute arises
from a business or commercial insurance policy, such as a commercial
general liability policy;
K. Third-party indemnification claims against insurance companies where
the subject insurance policy is a business or commercial policy and
where the underlying dispute would otherwise be assigned to the Busi-
ness Court, not including claims where the underlying dispute is prin-
cipally a personal injury claim; and
L. Such other cases where the primary issue(s) are commercial in nature.
All of the above types of actions may involve individuals named as parties,
in addition to business enterprises, so long as all other criteria are met and
the essential nature of the litigation is a business dispute. For example, a
dispute over a commercial loan may include individual guarantors as either
plaintiffs or defendants, as the case may be, but such a lawsuit would still
be a commercial dispute.
III. Cases Not Subject to the Business Court. The following types of matters are
not ordinarily to be assigned to the Business Court:
234 The Business Lawyer; Vol. 60, November 2004

A. Appeals from the County Court;


B. Personal injury, survivor or wrongful death matters;
C. Individual (non-class) consumer claims against businesses or insurers,
including products liability and personal injury cases;
D. Matters involving occupational health or safety;
E. Environmental claims not involved in the sale or disposition of a busi-
ness and other than those addressed in Business Court types II ( J) or
(K) above;
F. Matters in eminent domain;
G. Malpractice claims, other than those brought by business enterprises
against attorneys, or accountants, architects or other professionals in
connection with the rendering of professional services to the business
enterprise;
H. Employment law cases, other than those referenced in Business Court
type II (C) above;
I. Administrative agency, tax, zoning and other appeals;
J. Petition actions in the nature of change of name, mental health act,
guardianship, or government election matters;
K. Individual residential real estate and non-commercial landlord-tenant
disputes;
L. Suits to collect professional fees:
M. Cases seeking a declaratory judgment as to insurance coverage for a
personal injury or property damage action;
N. Proceedings to enforce a judgment regardless of the nature of the un-
derlying case;
O. Actions by insurers to collect premiums or rescind policies;
P. Domestic relations matters, and actions relating to distribution of marital
property, custody or support;
Q. Any matter required by statute or other law to be heard in some other
Court or Division;
R. Any criminal matter other than criminal contempt in connection with a
Business Court action;
S. Such other cases which are appropriately transferred out of the Business
Court pursuant to Section V of this Order.
IV. Assignment of Cases to Business Court.
A. Effective August 1, 2003, the Civil Cover Sheet shall include an addi-
tional line and box with which the party or attorney signing the Civil
Cover Sheet must certify whether the action is appropriate for assign-
ment to the Business Court. A “Business Court Addendum to Civil Cover
Sheet,” a sample of which is attached as Exhibit “A,” is hereby required
to be filed with all initial filings which meet the Business Court criteria
and which are filed on or after August 1, 2003. The filing party or
attorney shall indicate on the Business Court Addendum the applicable
type or types of action which make the case appropriate for assignment
to the Business Court. A party’s or an attorney’s signature on the Civil
The Creation and Jurisdiction of Business Courts in the Last Decade 235

Cover Sheet shall constitute certification that the matter is or is not


subject to the Business Court, as indicated on the Civil Cover Sheet and
Addendum. A copy of the Civil Cover Sheet and Business Court Ad-
dendum shall be served with the original process served on all parties.
All actions designated into the Business Court pursuant to the Busi-
ness Court Addendum shall be assigned to the Business Court and to
the individual calendar of the Business Court Judge effective December
1, 2003.
B. Cases meeting the criteria to qualify as Business Court cases pursuant
to this Administrative Order shall be assigned to Subdivision 32 in the
Circuit Civil Division in Orange County.
C. Effective October 1, 2003, the Clerk of Court shall cease assigning any
newly filed cases to Subdivision 32 and instead, the Clerk of Court shall
begin randomly and equally assigning all newly filed cases to the other
Subdivisions 33, 34, 35, 37, 39, and 40 in the Circuit Civil Division.
D. The pending cases currently assigned to Subdivision 32 which were filed
prior to October 1, 2003 shall remain assigned to Subdivision 32 and
the Business Court Judge will continue to handle these cases.
E. Effective December 1, 2003, the Clerk of Court shall begin assigning all
newly filed cases which meet the criteria as Business Court cases to
Subdivision 32.
F. The Judges assigned to the other Subdivisions in the Circuit Civil Di-
vision and/or litigants may initiate and submit a request to the Admin-
istrative Judge of the Circuit Civil Division that a pending case which
meets the criteria of the Business Court be re-assigned/transferred to
Subdivision 32 per the Administrative Judge’s discretion.
G. Controversies which may arise concerning the re-assignment/transfer of
any cases in the Circuit Civil Division, including, but not limited to,
Business Court cases, shall be resolved by the Administrative Judge of
the Circuit Civil Division.
V. Disputes Arising From the Civil Cover Sheet Designation. If any party dis-
agrees with the designation or lack of designation of a case into the Business
Court, that party shall file with the initially-assigned Judge a “Motion to
Transfer Divisions” and the motion will be resolved by the Administrative
Judge of the Circuit Civil Division in accordance with the Ninth Judicial
Circuit Administrative Procedures for case re-assignment.
VI. Case Management Procedures. Unless otherwise ordered by the Business
Court Judge these procedures will apply to all cases which are assigned to
the Business Court. Those existing cases which are transferred to the Busi-
ness Court will be subject to these procedures at the discretion of the Busi-
ness Court Judge.
A. The Case Management Conference. Typically, notice of a Case Manage-
ment Conference (“CMC”) will be sent to counsel and unrepresented
parties sixty days after filing of the Complaint, scheduling the CMC for
approximately ninety days after filing. In certain circumstances, the
236 The Business Lawyer; Vol. 60, November 2004

CMC may be scheduled through the Business Court Judge. Prior to the
CMC, it shall be the obligation of the parties to confer concerning all of
the following matters, for the purposes of reaching agreements. The
following subjects, along with other appropriate topics including those
set forth in Fla R. Civ. P. 1.200 (a), will be discussed at the CMC:
1. Pleadings issues, including service of process, venue, joinder of ad-
ditional parties, theories of liability, damages claimed and applicable
defenses;
2. Timing and potential forms of Alternative Dispute Resolution (ADR);
3. Scheduling dispositive motions and scheduling limited-issue discov-
ery in aid of early dispositive motions;
4. The possibility of settlement;
5. Preparation and issuance of a Case Management Order (“CMO”),
which will set forth a target trial date, deemed the earliest trial date;
6. A discovery plan and schedule based on the CMO date for the com-
pletion of discovery; and
7. Anticipated areas of expert testimony, timing for identification of ex-
perts, responses to expert discovery, exchange of expert reports (ref-
erence to the CMO).
The Business Court Judge, in his/her discretion, may, upon appli-
cation of any party or upon his/her own initiative, modify these pro-
cedures. The Business Court Judge may establish any informal pro-
cedures to achieve expeditious resolution of discovery disputes and
other non-dispositive issues.
B. Case Management Order. After the CMC, the Business Court Judge shall
issue a Case Management Order (“CMO”) setting forth dates for medi-
ation and for a pretrial conference (with pretrial statements typically to
be filed in advance), and for trial. The CMO will also address the other
matters discussed or developed at the CMC, including cut-off dates for
completion of discovery, for the service of expert reports and for the
filing of motions.
Based upon the nature and complexity of the case, the Business Court
Judge, with input from the parties at the CMC, shall assign the case to
a track. The Business Court shall typically employ the following man-
agement tracks: Business Expedited (Target Trial Date within 13 months
of Complaint) and Business Standard (Target Trial Date within 18
months of Complaint). Only exceptionally complicated cases should be
designated Business Complex (Target Trial Date within Two Years of
Complaint). In the latter instance, the Business Court Judge may sched-
ule status conferences at six month intervals or at any other times upon
application of the parties, if appropriate.
The Business Expedited Track shall consist of matters in which min-
imal discovery is needed and legal issues are anticipated to be routine.
Examples of such actions, in the absence of complicating factors, are
actions relating to commercial loans, and contract, UCC and foreclosure
The Creation and Jurisdiction of Business Courts in the Last Decade 237

matters. Other matters should presumptively be designated Business


Standard. Actions in which preliminary injunctive relief is sought may
be appropriate for any of the tracks depending upon the circumstances.
C. Pretrial Conference. A Pretrial Conference shall be held in all Business
Court actions pursuant to this Order and Fla R. Civ. P. 1.200 (b). The
pretrial conference will typically be set approximately sixty (60) days
prior to the target trial date. The Business Court shall exercise its best
efforts to try the matter as soon after the target trial date as practicable.
Typically, the CMO will require the filing of pretrial statements in
advance of the pretrial conference. Prior to the pretrial conference, prin-
cipal trial counsel shall confer on the matters set forth in Fla R. Civ. P.
1.200 (b), and attempt to reach agreement on such matters.
Following the pretrial conference, the Business Court Judge shall enter
a Pretrial Order pursuant to Fla R. Civ. P. 1.200 (b), identifying the date
by which the matter should be prepared for trial and otherwise con-
trolling the conduct of trial. The Pretrial Order may further provide
specific dates for such matters as:
1. Exchange of proposed stipulations and filing of stipulations to facts
and issues of law about which there can be no reasonable dispute;
2. Pre-marking and exchanging copies of all documents or other exhib-
its to be offered in evidence at trial;
3. Service and filing of written objections to any documents or other
exhibits as to which a party intends to object at trial, together with
the legal basis for such objections;
4. Identification in writing of all deposition testimony, by page and line
number, intended to be read into the record at trial, followed by
counter-designations and objections to deposition designations;
5. Exchange of trial briefs and proposed findings of fact and conclusions
of law (nonjury) or proposed jury instructions; and
6. Such other matters as the Court deems appropriate.
At such time prior to trial as may be fixed by the Court, it shall
rule on all matters placed in issue under this procedure. In addition,
the Court may establish procedures consistent with the requirements
of each case to ensure close interaction with the parties in order to
minimize trial time.
VII. Appointments.
A. The Honorable Renee A. Roche currently assigned to Subdivision 32 in
the Circuit Civil Division shall remain assigned to Subdivision 32 and
is designated the Business Court Judge until further notice.
B. The Chief Judge may appoint a Business Court Special Master to hear
all matters referred to him or her by the Judge of the Business Court
Sub-Division pursuant to Fla. R. Civ. P. 1.490, and to make recommen-
dations and proposed findings of fact and conclusions of law for the
Judge’s consideration. The Special Master’s compensation and source of
funding shall be addressed in future Orders of the Chief Judge.
238 The Business Lawyer; Vol. 60, November 2004

VIII. Administrative Order No. 2003-17 dated June 26, 2003 and Administrative
Order No. 2003-25 dated September 25, 2003 are vacated and set aside.

DONE AND ORDERED at Orlando, Orange County, Florida this 26th day of
November, 2003. Nunc pro tunc to August 1, 2003.

/s/ Belvin Perry, Jr.


Belvin Perry, Jr.
Chief Judge

Amended Order Creating Specialized Business Court Sub-Division of the Civil


Division of the Circuit Court, No. 2003-17-1, available at http://www.ninja9.org/
adminorders/orders/2003-17-1.pdf (last visited Oct. 25, 2004).

ILLINOIS
Circuit Court of Cook County, Law Division, Commercial Calendar

STATE OF ILLINOIS )
) SS
COUNTY OF COOK )

IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS


COUNTY DEPARTMENT—LAW DIVISION

GENERAL ADMINISTRATIVE ORDER 92-2


Individual Calendar Call

Effective September 14, 1992, and Individual Calendar Call pilot program shall
be instituted in the Law Division and designated cases now pending and hereafter
filed therein shall be randomly assigned by electronic process to the Individual
Calendars.

A. STRUCTURE
1. The number of Individual Calendars and the judges assigned thereto shall
be as the Presiding Judge of the Law Division shall from time to time
designate.
2. There shall be two sections of Individual Calendars, namely: General Cal-
endar Section and Commercial Calendar Section.
a) General Calendars shall have assigned to them cases of every variety
pending and filed within the Law Division in numbers as shall be from
time to time designated by the Presiding Judge of the Law Division.
b) Commercial Calendars shall have assigned to them cases, whether based
upon theories of tort, contract or otherwise, that involve a commercial
relationship between the parties. The number of cases assigned to each
Commercial Calendar shall be as the Presiding Judge of the Law Division
may from time to time designate.
The Creation and Jurisdiction of Business Courts in the Last Decade 239

B. PROCEDURE
1. Once a case has been assigned to an individual Calendar, all proceedings
subsequently initiated and the ultimate trial of the case shall be heard by
the judge presiding over the Individual Calendar to which the case has
been assigned.
..........
IT IS HEREBY ORDERED that this Order is effective September 14, 1992 and
will be spread upon the records of this court.
Dated at Chicago, Illinois this 9th day of September, 1992
ENTER:
Donald P. O’Connell
Presiding Judge
Law Division

The Civil Action Cover Sheet for Law Division Cases in the Circuit Court of Cook
County provides the following choices for the filing party to mark off under the
heading “COMMERCIAL LITIGATION”:
002 Breach of Contract
070 Professional Malpractice (other than legal or medical)
071 Fraud
072 Consumer Fraud
073 Breach of Warranty
074 Statutory Action
075 Other Commercial Litigation
076 Retaliatory Discharge
During the research for this paper, a website posted at www.commercialcourts.net
by one of the Commercial Calendar Judges, included a webpage, no longer active,
stating as follows, concerning matters heard on the Commercial Calendar:
Cases assigned to the Commercial Section Judges include commercial claims in
excess of $30,000.00, including, but not limited to, the following:
Breach of Contract Business Torts & Other Collections
Sale of Goods (Uniform Professional Negligence Notes
Commercial Code) (Except Medical
Malpractice)
Purchase of Services Fraud & Misrepresentation Guaranties
Warranties & Service Contracts Consumer Fraud Act Other Collection
Sale of Business Tortious Interference
Franchise Breach of Fiduciary Duty/
Oppression
Employment Retaliatory Discharge
Indemnification Miscellaneous Statutory
240 The Business Lawyer; Vol. 60, November 2004

Sale of Real Estate Securities


Commercial Leases Corporate & Business Law
Construction Non-for-Profit
Professional Services Other

MARYLAND
Maryland Rule 16-205 provides:
Rule 16-205. Business and technology case management program.
(a) Definitions. The following definitions apply in this Rule:
(1) ADR. “ADR” means “alternative dispute resolution” as defined in Rule 17-
102.
(2) Program. “Program” means the business and technology case manage-
ment program established pursuant to this Rule.
(3) Program judge. “Program judge” means a judge of a circuit court who is
assigned to the program.
(b) Program established. Subject to the availability of fiscal and human resources,
a program approved by the Chief Judge of the Court of Appeals shall be
established to enable each circuit court to handle business and technology
matters in a coordinated, efficient, and responsive manner and to afford con-
venient access to lawyers and litigants in business and technology matters.
The program shall include:
(1) a program track within the differentiated case management system estab-
lished under Rule 16-202;
(2) the procedure by which an action is assigned to the program;
(3) program judges who are specially trained in business and technology;
and
(4) ADR proceedings conducted by persons qualified under Title 17 of these
Rules and specially trained in business and technology.
Cross References.—See Rules 16-101 a and 16-103 a concerning the assignment
of a judge of the circuit court for a county to sit as a program judge in the circuit
court for another county.
(c) Assignment of actions to the program. On written request of a party or on
the court’s own initiative, the Circuit Administrative Judge of the circuit in
which an action is filed or the Administrative Judge’s designee may assign the
action to the program if the judge determines that the action presents com-
mercial or technological issues of such a complex or novel nature that spe-
cialized treatment is likely to improve the administration of justice. Factors
that the judge may consider in making the determination include: (1) the
nature of the relief sought, (2) the number and diverse interests of the parties,
(3) the anticipated nature and extent of pretrial discovery and motions,
(4) whether the parties agree to waive venue for the hearing of motions and
other pretrial matters, (5) the degree of novelty and complexity of the factual
The Creation and Jurisdiction of Business Courts in the Last Decade 241

and legal issues presented, (6) whether business or technology issues pre-
dominate over other issues presented in the action, and (7) the willingness
of the parties to participate in ADR procedures.
(d) Assignment to program judge. Each action assigned to the program shall be
assigned to a specific program judge. The program judge to whom the action
is assigned shall hear all proceedings until the matter is concluded, except
that, if necessary to prevent undue delay, prejudice, or injustice, the Circuit
Administrative Judge or the Circuit Administrative Judge’s designee may des-
ignate another judge to hear a particular pretrial matter. That judge shall be
a program judge, if practicable.
(e) Scheduling conference; Order. Promptly after an action is assigned, the pro-
gram judge shall (1) hold a scheduling conference under Rule 2-504.1 at
which the program judge and the parties discuss the scheduling of discovery,
ADR, and a trial date and (2) enter a scheduling order under Rule 2-504 that
includes case management decisions made by the court at or as a result of
the scheduling conference. (Added Oct. 31, 2002, effective Jan. 1, 2003.)

MASSACHUSETTS
Cases would presumptively qualify as complex commercial cases for the BLS,
whether the litigants are individuals or entities, when issues come within, or meet
the qualifications for inclusion in, one or more of the following categories:

a. claims relating to the governance and conduct of internal affairs of all business
enterprises and not-for-profit institutions, however organized, including,
without limitation, employment agreement disputes, liability of officers, di-
rectors, partners, managers and trustees under statutes and common laws
arising out of the governance and conduct of affairs of the enterprise or
institution;
b. shareholder derivative claims and claims relating or arising out of securities
transactions;
c. claims involving mergers, consolidations, sales of assets, issuance of debt,
equity and other like interests of business enterprise and not-for-profit
institutions;
d. claims to determine the use or status of or claims involving, intellectual prop-
erty, confidential, proprietary or trade secret information; claims involving
restrictive covenants;
e. claims involving alleged breaches of contract or fiduciary duties, fraud, mis-
representation, business torts or other violations involving business relation-
ships (e.g. unfair competition), if they have complex factual or legal issues or
are likely to require complex case management;
f. claims under the uniform Commercial Code, if the claims involve complex
factual or legal issues or are likely to require complex case management;
g. claims arising from transactions with banks, investment bankers, financial
advisers, brokerage firms, mutual and money funds of all kinds, if the claims
242 The Business Lawyer; Vol. 60, November 2004

involve complex factual or legal issues or are likely to require complex case
management;
h. claims for alleged violations of antitrust and other restraint of trade laws;
claims of unfair trade practices if the claims involve complex factual or legal
issue or are likely to require complex case management;
i. malpractice claims brought by business enterprises and not-for-profit insti-
tutions against professionals relating to rendering of professional service;
j. claims to which a governmental entity or authority is a party if the claims are
described by any of the above categories and are no excluded from the Busi-
ness Litigation Session as set out in the next section; and
k. Other commercial claims, including those involving insurance, construction,
real estate and consumer matters, which have complex factual or legal issues
or are likely to require complex case management.
Cases involving the following would not be eligible for assignment to the BLS
unless (except for cases within clause (a) below) there were issues in a case where
one or more of the other issues qualifies for the BLS:
(a) matters subject to compulsory arbitration or to the exclusive jurisdiction of
the Probation Land and Housing Courts, the District Courts or the Boston
Municipal Court;
(b) personal injury survival or wrongful death matters;
(c) individual (non-class) consumer claims against businesses or insurers, in-
cluding product liability and personal injury cases;
(d) environmental claims not involved in the sale or disposition of a business;
(e) eminent domain matters;
(f ) malpractice claims other than those designated above for the BLS;
(g) employment disputes not involving written contracts and employment dis-
crimination cases;
(h) administrative agency review under G.L. c. 30A, ∼14.zoning and other ap-
peals from administrative agency order;
(i) residential real estate and non-commercial landlord-tenant disputes; and
( j) occupational health or safety matters.
1) As to cases filed on and after October 2, 2000:
A plaintiff who claims that the case fits one or more of the criteria listed
above should use a special cover sheet which is available at the office of
the Clerk of Civil Business and indicate thereon which criteria apply. The
case shall be thereupon initially assigned to the BLS for review by the
presiding justice.
At any time thereafter any party who claims that the case fits one or
more criteria should serve and file a motion under rule 9A in the BLS
requesting assignment to the BLS and state with particularity why the case
meets one or more of the criteria.
The presiding Justice of the BLS will review all cases initially assigned
thereto and all motions requesting such assignment thereafter and deter-
mine in his or her discretion which cases shall continue in the BLS. Any
The Creation and Jurisdiction of Business Courts in the Last Decade 243

case assigned or referred to the BLS may, in the discretion of the presiding
justice of the BLS be referred out of the BLS at any time if, in his or her
judgment, it is not suitable of the BLS. Those cases will be then assigned
by the clerk’s office to one of the regular time standards sessions.
....
3) As to all cases:
No party shall have a right of referral of a pending case to the BLS. A
case will not be assigned to or retained in the BLS unless it meets one or
more of the criteria listed above. Case on the excluded list will not be
assigned to or retained in the BLS. All decisions to refer or retain a case
in the BLS shall be at the discretion of the presiding justice of the BLS.
As a case progresses, the presiding justice of the BLS may determine
that the case does not involve complex factual or legal issues, or does not
require complex case management, even though the subject matter of the
controversy otherwise qualifies as a business litigation case. In such case
the presiding justice of the BLS may return the case to the clerk’s office
for assignment to a regular time standards session.
September, 2000
Signed: Chief Justice Suzanne V. DelVecchio
Superior Court Establishes Business Court Procedure, Notice to Bar, Business
Litigation Session, Suffolk Superior Court, Massachusetts Lawyers Weekly, Oc-
tober 2, 2000

MICHIGAN
Michigan Compiled Laws Annotated § 600.8001 (West Supp. 2004).
600.8001. Creation; court of record; purpose; location; electronic communica-
tions; session; staff and support services; funding
Sec. 8001. (1) The cyber court is created and is a court of record.
(2) The purpose of the cyber court is to do all of the following:
(a) Establish judicial structures that will help to strengthen and revitalize the
economy of this state.
(b) Allow business or commercial disputes to be resolved with the expertise,
technology, and efficiency required by the information age economy.
(c) Assist the judiciary in responding to the rapid expansion of information
technology in this state.
(d) Establish a technology-rich system to serve the needs of a judicial system
operating in a global economy.
(e) Maintain the integrity of the judicial system while applying new tech-
nologies to judicial proceedings.
(f ) Supplement other state programs designed to make the state attractive to
technology-driven companies.
244 The Business Lawyer; Vol. 60, November 2004

(g) Permit alternative dispute resolution mechanisms to benefit from the


technology changes.
(h) Establish virtual courtroom facilities, and allow the conducting of court
proceedings electronically and the electronic filing of documents.
(3) The cyber court shall be located in 1 or more counties as determined by the
supreme court. The cyber court shall sit in facilities designed to allow all
hearings and proceedings to be conducted by means of electronic commu-
nications, including, but not limited to, video and audio conferencing and
internet conferencing.
(4) The cyber court shall hold session and shall schedule hearings or other pro-
ceedings to accommodate parties or witnesses who are located outside of this
state. A cyber court facility is open to the public to the same extent as a circuit
court facility. When technologically feasible, and at the discretion of the judge,
pursuant to the court rules, all proceedings of the cyber court shall be broad-
cast on the internet.
(5) The cyber court shall maintain its staff and support services at the seat of
government.
(6) The cyber court shall be funded from annual appropriations to the supreme
court.
Michigan Compiled Laws Annotated § 600.8005 (West Supp. 2004).
600.8005. Jurisdiction
Sec. 8005. (1) The cyber court has concurrent jurisdiction over business or com-
mercial disputes in which the amount in controversy exceeds $25,000.00.
(2) An action that involves a business or commercial dispute may be maintained
in the cyber court although it also involves claims that are not business or
commercial disputes.
(3) For purposes of this section:
(a) “Business enterprise” means a sole proprietorship, partnership, limited
partnership, joint venture, limited liability company, limited liability part-
nership, for-profit or not-for-profit corporation or professional corpora-
tion, business trust, real estate investment trust, or any other entity in
which a business may lawfully be conducted in the jurisdiction in which
the business is being conducted. Business enterprise does not include an
ecclesiastical or religious organization.
(b) “Business or commercial dispute” means any of the following actions:
(i) An action in which all of the parties are business enterprises.
(ii) An action in which 1 or more of the parties is a business enterprise
and the other parties are its or their present or former owners, man-
agers, shareholders, members, directors, officers, agents, employees,
suppliers, customers, or competitors, and the claims arise out of
those relationships.
(iii) An action in which 1 of the parties is a nonprofit organization, and
the claims arise out of that party’s organizational structure, gover-
nance, or finances.
The Creation and Jurisdiction of Business Courts in the Last Decade 245

(iv) An action involving the sale, merger, purchase, combination, dis-


solution, liquidation, organizational structure, governance, or fi-
nances of a business enterprise.
(4) Business or commercial disputes include, but are not limited to, the following
types of actions:
(a) Those involving information technology, software, or website develop-
ment, maintenance, or hosting.
(b) Those involving the internal organization of business entities and the
rights or obligations of shareholders, partners, members, owners, officers,
directors, or managers.
(c) Those arising out of contractual agreements or other business dealings,
including licensing, trade secret, noncompete, nonsolicitation, and con-
fidentiality agreements.
(d) Those arising out of commercial transactions, including commercial bank
transactions.
(e) Those arising out of business or commercial insurance policies.
(f ) Those involving commercial real property.
(5) Notwithstanding subsections (3) and (4), business or commercial disputes
expressly exclude the following types of actions:
(a) Personal injury actions involving only physical injuries to 1 or more in-
dividuals, including wrongful death and malpractice actions against any
health care provider.
(b) Product liability actions in which any of the claimants are individuals.
(c) Matters within the jurisdiction of the family division of circuit court.
(d) Proceedings under the probate code of 1939, 1939 PA 288, MCL 710.21
to 712A.32.
(e) Proceedings under the estates and protected individuals code, 1998 PA
386, MCL 700.1101 to 700.8102.
(f ) Criminal matters.
(g) Condemnation matters.
(h) Appeals from lower courts or any administrative agency.
(i) Proceedings to enforce judgments of any kind.
( j) Landlord-tenant matters involving only residential property.

NEVADA
RULES OF PRACTICE FOR THE EIGHTH JUDICIAL DISTRICT COURT OF THE
STATE OF NEVADA
PART I. ORGANIZATION OF THE COURT AND ADMINISTRATION
Rule 1.61. Assignment of business matters.
Unless otherwise provided in these rules, business matters must be divided evenly
among those full-time civil judges deemed necessary to handle all business matters.
(a) “Business Matters” shall be deemed as follows:
246 The Business Lawyer; Vol. 60, November 2004

(1) Disputes concerning the validity, control, operation, or governance of


entities created under NRS Chapters 78-88, including shareholder deriv-
ative suits;
(2) Disputes concerning trademarks asserted under Nevada law, causes of
action asserted pursuant to the Nevada Trade Secrets Acts, the Nevada
Securities Act, involving investment securities described in Article 8 of
the Nevada Uniform Commercial Code; or commodities described in
NRS Chapter 90;
(3) Disputes between two business entities where the court determines that
the case would benefit from enhanced case management.
(b) The following shall not be deemed business matters:
(1) Matters where the primary claim is an action for personal injury;
(2) An action based on products liability;
(3) An action brought by a consumer against a business;
(4) An action for wrongful termination of employment; or
(5) Landlord-tenant disputes shall not be deemed a business matter.
(c) Either party in a case may file a request in the pleadings that a case be assigned
as a business matter. If the request is made by the plaintiff, the case will
automatically be assigned to a full-time civil judge assigned to business mat-
ters. If the request is not made by the plaintiff, but is made by a defendant
in its answer, the case shall be randomly reassigned to a business court judge
for determination whether the case should be handled as a business court
matter.
(d) The court shall decide whether a case is or is not a business matter and that
decision shall not be appealable by any appeal nor reviewable upon any writ;
any matters not deemed a business matter shall be randomly reassigned if it
was originally assigned to the business court. If a case was remanded to the
business court for determination of whether it would be handled as a business
court matter and the business court deems it not to be a business court matter,
that case will be remanded back to the department to which it was originally
assigned.

Rules of Practice for the Eighth Judicial District Court of the State of Nevada, Rule
1.61, available at http://www.co.clark.nv.us/district_court/EDCR.pdf (last visited
Oct. 7, 2004).

RULES OF PRACTICE FOR THE SECOND JUDICIAL DISTRICT COURT OF


THE STATE OF NEVADA

Rule 2.1. Business court docket

1. A civil action shall be assigned to the business court docket if, regardless of
the nature of relief sought, the primary subject matter of the action is:
(a) A dispute concerning the validity, control, operation or governance of
entities created under NRS Chapters 78-88, including shareholder deriv-
ative actions;
The Creation and Jurisdiction of Business Courts in the Last Decade 247

(b) A dispute concerning a trade-mark or trade name; a claim asserted pur-


suant to the Nevada Trade Secrets Act, NRS 600A.010, et seq.; a claim
asserted pursuant to the Nevada Securities Act, NRS 90.211, et seq.; a
claim asserted pursuant to the Nevada Deceptive Trade Practices Act, NRS
598.0903, et seq.; a claim involving investment securities governed by
NRS 104.8101, et seq.; or,
(c) Any dispute among business entities if the presiding judge of the business
court docket determines that the case would benefit from enhanced case
management.
2. Actions in which the primary claim alleges personal injury or products liability,
damage of a consumer by a business, wrongful termination of employment,
or actions arising from a landlord-tenant relationship shall not be included in
the business court docket.
3. A party in an action assigned to another department of the court may request
that the action be transferred to the business court docket. Upon filing of such
a request, the clerk shall transfer the case file to the presiding judge of the
business court docket who shall thereupon determine whether to assume ju-
risdiction of the case. The decision of the presiding judge of the business court
docket to accept or decline jurisdiction of the action is final, and is not ap-
pealable nor reviewable upon any petition for extraordinary relief.
4. The presiding judge of the business court docket may hear and decide all other
civil and criminal actions assigned to such judge as any other general juris-
diction district court judge.
5. The presiding judge of the business court docket shall be appointed by the
chief judge. The judge so selected shall serve for a term of two years unless
reappointed. Management of the business court docket shall be the highest
case management priority of the presiding judge of the business court docket,
who may request reassignment by the chief judge of civil or criminal cases, as
necessary, consistent with this case management priority.
6. Subject to approval by the presiding judge of the business court docket and
the chief judge, an action filed in any other judicial district may be transferred
to the business court docket of this district if all parties and the district judge
assigned to the case consent.
7. The presiding judge of the business court docket may transfer a business action
to another judge of this district for any and all proceedings, subject to the
consent of the judge to whom the action is transferred.
8. If the presiding judge of the business court docket is the subject of a peremp-
tory challenge pursuant to S.C.R. 48.1, the clerk shall randomly reassign the
case to another department of the court. [Added; effective November 20,
2000.]
Rules of Practice for the Second Judicial District Court of the State of Nevada,
Rule 2.1, available at http://www.leg.state.nv.us/courtrules/SecondDCR.html (last
visited on Oct. 7, 2004).
248 The Business Lawyer; Vol. 60, November 2004

NEW YORK
The Commercial Division handles complicated commercial cases. In the various
counties the Division has issued guidelines or rules defining the cases that are
accepted for filing in the Division. These guidelines and rules can be found at
http://www.courts.state.ny.us/comdiv/general_information.htm under the listing
for each county.

NEW YORK COUNTY


In general, the Commercial Division entertains complex commercial and busi-
ness disputes in which a party seeks compensatory damages totaling $125,000
or more (exclusive of interest, costs, and attorney’s fees). Due to caseload consid-
erations, the Justices of the Division are empowered to transfer out of the Division
cases which, in their judgment, do not fall within this category notwithstanding
that a party has described the case as “commercial” on the Request for Judicial
Intervention. The principles set out below will guide the exercise of this authority.
Parties should adhere to these principles when designating a case type on the RJI.
(A) The following will presumptively be transferred out of the Division even if
the monetary threshold is met:
(1) Suits to collect professional fees;
(2) Cases seeking a declaratory judgment as to insurance coverage for a
personal injury or property damage action;
(3) Landlord-tenant matters, uncomplicated Yellowstone applications and
other real estate disputes;
(4) Proceedings to enforce a judgment regardless of the nature of the un-
derlying case;
(5) First-party insurance claims and actions by insurers to collect premiums
or rescind policies; and
(6) Attorney malpractice actions.
(B) Actions in which the principal claims involve the following will presump-
tively be retained in the Division provided that the monetary threshold is
met:
(1) Breach of contract or fiduciary duty, fraud, misrepresentation, business
tort (e.g., unfair competition), or statutory violation arising out of busi-
ness dealings (e.g., sales of assets or securities, corporate structurings,
partnership, shareholder, joint venture, and other business agreements,
trade secrets and restrictive covenants);
(2) Transactions governed by the Uniform Commercial Code (exclusive of
those concerning individual coop units);
(3) Complicated transactions involving commercial real property;
(4) Shareholder derivative actions and commercial class actions;
(5) Commercial bank transactions;
(6) Internal affairs of business organizations or liability to third parties of
officials thereof;
The Creation and Jurisdiction of Business Courts in the Last Decade 249

(7) Malpractice by accountants or actuaries; and


(8) Complicated environmental insurance coverage litigation.
(C) (i) Attorneys who wish to file an RJI seeking assignment to the Commercial
Division must, prior to purchase of the Request for Judicial Intervention
and filing with any back office, present the RJI and initial papers to the
appropriate back office for preliminary review, as follows. The papers to
be filed with the RJI, including a request for a preliminary conference,
must include or be accompanied by a copy of the pleadings (the com-
plaint and other pleadings, if any, that have been served and filed as of
that point). If attorneys do not submit a copy of the pleadings, processing
will be delayed until the pleadings are submitted. If the RJI is accom-
panied by a motion on notice, the RJI and motion papers shall be sub-
mitted to the Motion Support Office (Room 119) for a preliminary review.
In other instances, the RJI and accompanying papers shall be submitted
to the Commercial Division Support Office for preliminary review. The
appropriate Support Office will review the pleadings to determine the
amount of damages claimed to be at issue in the case. If the case is alleged
to involve compensatory damages of less than $125,000 (exclusive of
interest, costs, and attorney’s fees), the Support Office will make a no-
tation that the matter shall be assigned at random to a non-Commercial
Justice. If the case is alleged to involve compensatory damages of
$125,000 or more (exclusive of interest, costs, and attorney’s fees), a
notation will be made that the case shall be assigned at random to a
Division Justice. The attorney shall then pay for the RJI and file the papers
with the appropriate office, which will assign the case in accordance with
the aforesaid notation. Cases in which equitable relief only is sought or
the amount of damages is not specified in the pleadings will be assigned
to the Division if the RJI so requests subject to screening by the assigned
Justice. If a party believes that the Support Office mistakenly directed
assignment of a matter to a non-Division Justice, a request shall be made
of that Justice for a transfer into the Division.
(ii) Notwithstanding that a case is assigned to a Commercial Division Justice
after the preliminary review, the Justice may thereafter determine that
the matter is, in fact, not appropriate for treatment in the Division, pur-
suant to the principles set forth in Paragraphs A and B above, and may
direct that the case be transferred out of the Division. The determination
by a Commercial Justice as to whether a case should be retained in the
Division will be made as soon as a matter is assigned to that Justice.
Retained cases will remain in the Division thereafter.
(D) Notwithstanding the foregoing, commercial cases in which compensatory
damages of $ 25,000 or more are sought will not be transferred out of the
Division if filed in accordance with the procedures governing the Division’s
Filing by Electronic Means program. For this purpose, “commercial cases”
include commercial real property disputes and the types of matters identified
in Paragraphs (A) 1-2 and 4-6 and (B) 1-8 (without regard to the monetary
threshold referred to in the second line of these Guidelines).
250 The Business Lawyer; Vol. 60, November 2004

Guidelines for Assignment of Cases to the Commercial Division, Supreme Court,


New York County, available at http://www.nycourts.gov/comdiv/Guidelines_for_
Assignment_of_CasesNYC.htm (last visited Oct. 7, 2004).

ALBANY COUNTY
As determined by the Commercial Division of Supreme Court, Commercial
Cases are defined as:
All business and commercial disputes in which the amount at issue generally
involves damage claims in a minimum amount of $25,000.
- or -
Claims for unspecified amounts where the value of the commercial asset(s)
in dispute exceeds $25,000.
....
One or more of the following criteria must be satisfied for the assignment of a
case to the Commercial Court:
1) CONTRACT:
Breach of contract, fraud or misrepresentation actions involving:
(a) Purchase or sale of securities
(b) Uniform Commercial Code transactions
(c) Purchase or sale of the assets of a business or merger, consolidation or
recapitalization of a business
(d) Providing of goods or services by or to a business entity
(e) Purchase or sale or lease of, or security interest in, commercial real prop-
erty or personal property
(f ) Partnership, shareholder o/r [sic] joint venture agreements
(g) Franchise, distribution or licensing agreements
2) BUSINESS CORPORATION LAW:
(a) Shareholder derivative actions
(b) Actions involving Judicial Dissolution
(c) Actions involving liability and indemnity of corporate directors and
officers
(d) Actions involving the internal affairs of corporations, such as voting and
inspection rights of shareholders or directors, authorization of corporate
acts or interpretations of articles or bylaws
(e) Actions involving foreign corporations authorized to do business in
the State of New York
(f ) Actions involving appointment of a Receiver of property of domestic or
qualified Foreign corporations.
3) PARTNERSHIP LAW:
(a) Actions involving property rights of general and limited partners and
partnerships.
(b) Actions involving partnership, general business operation, dissolution and
creditor’s rights.
The Creation and Jurisdiction of Business Courts in the Last Decade 251

4) UNIFORM COMMERCIAL CODE:


(a) Commercial loans (including failures to make commercial loans), nego-
tiable instruments, letters of credit and bank transactions
(b) Actions involving allegations of business torts, including unfair competi-
tion, interference with business advantage or contractual relations.
5) OTHER COMMERCIAL MATTERS:
(a) Actions involving employment agreements or employee incentive or re-
tirement plans (not including qualified retirement plans) in which the
business or commercial issues predominate and discharge, modification
or foreclosure of mechanics’ liens.
(b) Declaratory judgment actions and third-party indemnification claims ver-
sus insurance companies where the underlying cause of action is contract
in nature or would otherwise fall within the guidelines set forth herein.
(Specifically not included are Declaratory Judgment Actions and third-
party claims relating to fire loss, motor vehicle actions and Tort claims).
(c) Commercial Class actions
(d) Opening of default judgments where the underlying cause of action is
commercial in nature and would otherwise fall within the monetary and
jurisdictional guidelines set forth herein
(e) Actions may involve individuals, as well as business entities, as long as all
other criteria are satisfied.
MATTERS SPECIFICALLY EXCLUDED FROM COMMERCIAL DIVISION
• Real estate foreclosure actions.
• Proceedings to enforce a judgment.
• Products liability claims, including claims based upon warranty of mer-
chantability and/or fitness for a particular use.
• Declaratory judgment actions involving indemnification claims under in-
surance policies relating to underlying actions which are not commercial
in nature, including, but not limited to, underlying claims for fire loss,
motor vehicle actions and tort claims.
• Actions by or against Medicare, Medicaid, or the Department of Social
Services.
• Discrimination cases.
• Collection matters involving legal, medical, accounting, architectural fees
or other professional fees.
Guidelines for Cases Assigned to the Commercial Division, available at http://
www.courts.state.ny.us/comdiv/Albany_guidelines_for_cases_assigned.htm (last
visited on Oct. 7, 2004).

ERIE COUNTY
II. CRITERIA FOR COMMERCIAL COURT
The definition of a “commercial case,” as determined by the Commercial Division
of Supreme Court, is as follows:
252 The Business Lawyer; Vol. 60, November 2004

All business and commercial disputes in which the amount at issue exceeds
$25,000,1 exclusive of punitive damages, costs, and attorney fees; and exclusive
of any non-commercial claims, non-commercial cross-claims, or non-commercial
counterclaims.
If a commercial case does not meet the monetary threshold but may be espe-
cially suited to resolution in the Commercial Division, a motion may be made to
the presiding Judge of the Division, on notice to opposing counsel, to waive said
monetary threshold.
Such business and commercial disputes shall include the following types of
cases:
CONTRACT
1. Breach of contract, fraud or misrepresentation actions involving:
(a) Purchase or sale of securities.
(b) Uniform Commercial Code transactions.
(c) Purchase or sale of the assets of a business, or merger, consolidation or
recapitalization of a business.
(d) Providing of goods or services by or to a business entity.
(e) Purchase or sale or lease of, or security interest in, commercial real prop-
erty or personal property.
(f ) Partnership, shareholder or joint venture agreements.
(g) Franchise, distribution or licensing agreements.
BUSINESS CORPORATION LAW
2. Shareholder derivative actions.
3. Dissolution or liquidation of corporations.
4. Actions involving liability and indemnity of corporate directors and officers.
5. Actions involving the internal affairs of corporations, such as voting and
inspection rights of shareholders or directors, authorization of corporate acts
or interpretations of articles or by-laws.
PARTNERSHIP LAW
6. Actions involving general and limited partners and partnerships.
UNIFORM COMMERCIAL CODE
7. Commercial loans (including failures to make commercial loans), negotiable
instruments, letters of credit and bank transactions.
8. Actions involving allegations of business torts, including unfair competition
and interference with business advantage or contractual relations.
OTHER COMMERCIAL MATTERS
9. Actions involving employment agreements or employee incentive or retire-
ment plans (not including qualified retirement plans) in which the business
or commercial issues predominate.

1. It should be noted that the dollar amount at issue to qualify a case as Commercial may be
changed from time to time in order to adjust the workload of the Court.
The Creation and Jurisdiction of Business Courts in the Last Decade 253

10. Declaratory judgment actions and third party indemnification claims against
insurance companies where the underlying cause of action is contract in
nature or would otherwise fall within the guidelines set forth herein. (Spe-
cifically not included are Declaratory Judgment Actions and third party claims
relating to fire loss, motor vehicle actions and tort claims.)
11. Commercial class actions.
12. Opening of default judgments where the underlying cause of action is com-
mercial in nature and would otherwise fall within the monetary and juris-
dictional guidelines set forth herein.
13. Professional malpractice other than legal or medical.
14. Upon application and with prior approval of the Court, commercial foreclo-
sure actions involving commercial buildings where the amount in controversy
exceeds Five Hundred Thousand Dollars ($500,000.00).
15. Actions under New York Debtor and Creditor Law for fraudulent conveyance.
16. Actions may involve individuals, corporations, partnerships, trusts, joint ven-
tures or other forms of legal entities as long as all other criteria are met.

MATTERS NOT INCLUDED AS COMMERCIAL COURT CASES:

• Non-commercial landlord/tenant disputes.


• Matrimonial disputes.
• Consumer credit transactions involving individuals who are not part of
corporate, partnership, etc. entity.
• Residential foreclosure actions.
• Commercial foreclosure actions which do not meet the criteria set forth
in Item 14.
• Matters falling under the provisions of the Real Property Actions and Pro-
ceedings Law.
• Proceedings to enforce a judgment, including applications for information
subpoenas and contempt, without regard as to whether or not the under-
lying action is commercial in nature.
• Products liability claims, including merchantability and fitness for some
particular purpose claims.
• Discharge, modification or foreclosure of mechanics’ or other liens.
• Declaratory judgment actions involving indemnification claims under in-
surance policies relating to underlying actions which are not commercial
in nature, including, but not limited to, underlying claims for fire loss,
motor vehicle actions and tort claims.
• Opening/vacating or modifying default judgments on actions which are
not commercial in nature, including all matters which do not fall within
the monetary and jurisdictional guidelines set forth under these criteria.
• Actions by or against Medicare, Medicaid, or the Department of Social
Services or enforcement of legal rights under law.
• Discrimination cases (age, sex etc.) except when part of or under the terms
of a contract.
254 The Business Lawyer; Vol. 60, November 2004

• Collection matters involving the collection of legal, medical, accounting,


or architectural fees.
Rules and Practices for Cases Assigned to the Commercial Division, Supreme
Court, Erie County, The Honorable Joseph G. Makowski, J.S.C. Presiding, March
1, 2001, Commercial Litigation in New York State Courts, Vol. 4, Appendix E-1
at 368–370, (Robert L. Haig Editor in Chief, 2002 Cumulative Supplement).

KINGS COUNTY
These guidelines apply to RJIs filed on commercial cases on or after December
2, 2002.
In general, the Commercial Division of the Kings County Supreme Court will
entertain commercial and business disputes in which a party seeks compensatory
damages totaling $50,000 or more (exclusive of punitive damages, interests, costs
and attorney fees).
A Request for Judicial Intervention which is marked “Commercial” and is ac-
companied by a “Commercial Division Certification” identifying the nature of the
lawsuit and the reason for the assignment to the Commercial Division will initially
be assigned to a Commercial Division Part. The Certification requires verification
by counsel that the case meets the eligibility requirements set forth in these Rules.
A complete set of pleadings must accompany such certification and be annexed
to the RJI.
Justices of the Commercial Division are empowered to transfer cases out of the
Commercial Division which in their judgment do not fall within the eligibility
requirements set forth in these Rules. A Commercial Division Judge may order a
transfer notwithstanding that a party has described the case as commercial. An
Order will be issued stating the reason for such transfer. A party claiming to be
aggrieved by such transfer may seek review by letter application to the Admin-
istrative Judge (two pages maximum including a copy of the Commercial Division
Justice’s Order with a copy to all parties). If such application to the Administrative
Judge is not made within ten days of notification of the transfer order or the denial
of transfer, the decision of the Commercial Division Judge becomes final. The
order of the Administrative Judge is final and subject to no further review or
appeal.
A case already pending in a non-commercial IAS part may be transferred into
the Commercial Division upon application to the assigned IAS Judge and with
the consent of a Commercial Division Judge within three months of the initial
RJI. Any objections to such transfer must be raised before the IAS Judge who will
rule thereon in consultation with a Commercial Division Justice or the Admin-
istrative Judge. Review of the IAS Judge’s decision may be obtained by application
to the Administrative Judge in writing on notice to all parties within ten days of
entry. Thereafter, the decision of the IAS Judge becomes final.
Business and Commercial actions in which the principal claims involve the
following matters will be presumptively retained in the Commercial Division pro-
vided that the monetary threshold has been met:
The Creation and Jurisdiction of Business Courts in the Last Decade 255

Business Corporation Law


1. Shareholder derivative actions.
2. Dissolution or liquidation of corporations, professional corporations and lim-
ited liability corporations.
3. Actions involving liability and indemnity of corporate directors and officers.
4. Actions involving the internal affairs of corporations, such as voting and
inspection rights of shareholders or directors, authorization of corporate acts
or interpretations of articles or by-laws.
5. Actions involving appointment of a receiver of property of domestic or qual-
ified foreign corporations.
Contract
1. Breach of contract, fraud or misrepresentation actions involving:
(a) Purchase or sale of securities.
(b) Purchase or sale of the assets of a business or merger, consolidation or
recapitalization of a business.
(c) Providing of goods or services by or to a business entity.
(d) Partnership, shareholder or joint venture agreements.
(e) Franchise, distribution or licensing agreements.
Partnership Law
1. Actions involving general and limited partnerships.
Uniform Commercial Code
Transactions governed by the Uniform Commercial Code (exclusive of those
concerning individual co-op units).
Other Commercial Matters
1. Actions involving employment agreements, trade secrets, restrictive cove-
nants or employee incentive or retirement plans in which business or com-
mercial issues predominate.
2. Declaratory judgment actions and third party indemnification claims by or
against insurance companies where the underlying cause of action is contract
in nature or would otherwise fall within these guidelines.
3. Commercial class actions.
4. Professional malpractice involving commercial or business matters.
5. Complicated environmental insurance litigation.
6. Commercial bank transactions.
The following will presumptively be transferred out of the Division even if the
monetary threshold is met:
1. Suits to set professional fees.
2. Attorney or medical malpractice actions.
3. Real estate foreclosures even if they involve commercial buildings and com-
mercial parties.
4. Discharge, modification, or foreclosure of mechanics’ or other liens.
5. Discrimination cases except when part of or under the terms of a contract.
256 The Business Lawyer; Vol. 60, November 2004

6. Consumer collection matters.


7. Products liability claims including claims based upon warranty of merchant-
ability and/or fitness for a particular use.
8. Proceedings to enforce a judgment regardless of the nature of the underlying
dispute.
9. Cases seeking a declaratory judgment as to insurance coverage for a personal
injury or property damage action.
10. Landlord tenant matters, Yellowstone Injunctions, purchase, sale or lease of,
or security interest in commercial real property or personal property, and
other real estate disputes.
11. First party insurance claims and actions by insurers to collect premiums or
rescind policies.
[Revised April 1, 2004, by replacement of previous third through sixth (unnum-
bered) paragraphs with current third through fifth paragraphs.]
Guidelines for Assignment for Cases to Kings County, Supreme Court Commercial
Division, available at http://www.courts.state.ny.us/comdiv/Kings_Guidelines.htm
(last visited Oct. 7, 2004).

MONROE COUNTY
GUIDELINES FOR ASSIGNMENT OF CASES TO THE COMMERCIAL DIVISION
In general, the Commercial Division, Monroe County, entertains complex com-
mercial and business disputes in which a party seeks compensatory damages
totaling $25,000 or more, exclusive of punitive damages, costs, and attorney fees;
and exclusive of any non-commercial claims, non-commercial cross-claims, or
non-commercial counterclaims.
A) Such business and commercial disputes shall include the following types of
cases:
CONTRACT
1. Breach of contract, fraud or misrepresentation actions involving:
(a) Purchase or sale of securities.
(b) Uniform Commercial Code transactions.
(c) Purchase or sale of the assets of a business, or merger, consolidation
or recapitalization of a business.
(d) Providing of goods or services by or to a business entity.
(e) Purchase or sale or lease of, or security interest in, commercial real
property or personal property.
(f ) Partnership, shareholder or joint venture agreements.
(g) Franchise, distribution or licensing agreements.
BUSINESS CORPORATION LAW
2. Shareholder derivative actions
3. Dissolution or liquidation of corporations.
The Creation and Jurisdiction of Business Courts in the Last Decade 257

4. Actions involving liability and indemnity of corporate directors and


officers.
5. Actions involving the internal affairs of corporations, such as voting and
inspection rights of shareholders or directors, authorization of corporate
acts or interpretations of articles or by-laws.
PARTNERSHIP LAW
6. Actions involving general and limited partners and partnerships
UNIFORM COMMERCIAL CODE
7. Commercial loans (including failures to make commercial loans), ne-
gotiable instruments, letters of credit and bank transactions.
8. Actions involving allegations of business torts, including unfair compe-
tition, interference with business advantage or contractual relations.
OTHER COMMERCIAL MATTERS
9. Actions involving employment agreements or employee incentive or re-
tirement plans (not including qualified retirement plans) in which the
business or commercial issues predominate.
10. Declaratory judgment actions and third party indemnification claims ver-
sus insurance companies where the underlying cause of action is contract
in nature or would otherwise fall within the guidelines set forth herein.
(Specifically not included are Declaratory Judgment Actions and third
party claims relating to fire loss, motor vehicle actions and tort claims.)
11. Commercial class actions.
12. Opening of default judgments where the underlying cause of action is
commercial in nature and would otherwise fall within the monetary and
jurisdictional guidelines set forth herein.
13. Actions may involve individuals, and business entities, as long as all
other criteria are met.
(B) Matters Not Included as Commercial Court Cases Include the Following:
• Non-commercial landlord/tenant disputes
• Matrimonial disputes; including the enforcement of Separation Agree-
ments or Divorce Decrees
• Foreclosures, even if they involve commercial buildings and commercial
parties
• Matters falling under the provisions of the real property actions and pro-
ceedings law
• Proceedings to enforce a judgment, including applications for information
subpoenas and contempt, without regard as to whether or not the under-
lying action is commercial in nature.
• Products liability claims, including merchantability and fitness for some
particular purpose claims
• Discharge, modification or foreclosure of mechanics’ or other liens
• Declaratory judgment actions involving indemnification claims under in-
surance policies relating to underlying actions which are NOT commercial
258 The Business Lawyer; Vol. 60, November 2004

in nature, including, but not limited to, underlying claims for fire loss,
motor vehicle actions and tort claims.
• Opening/vacating or modifying default judgments on actions which are
NOT commercial in nature, including all matters which do not fall within
the monetary and jurisdictional guidelines set forth under Criteria.
• Actions by or against Medicare, Medicaid, or the Department of Social
Services or enforcement of legal rights under law.
• Discrimination cases (age, sex etc.) except when part of or under the terms
of a contract.
• Collection matters involving the collection for legal, medical, accounting,
or architectural fees.
• Legal, medical, or accounting malpractice actions even where a contract
cause of action is also stated.
(C) The determination as to whether a case should be assigned to the Commercial
Division is made by the Clerk of the Supreme Court, based upon the criteria
for commercial cases established by the Court. For this purpose, counsel
must annex a copy of the summons and complaint to any submission of an
RJI seeking assignment to the Commercial Division.
(D) Any special proceedings under the CPLR which are clearly commercial in
nature (including dissolution proceedings and applications relating to CPLR
Article 75 in a commercial setting) should be marked as a special proceeding
but should also indicate (on the form or by separate cover) that the matter
is commercial in nature.
(E) The Commercial Division Justice or an assigned IAS Justice may request that
an assignment of a matter be reconsidered by the Clerk. Since the assignment
of any case in the Supreme Court is based on various criteria, including the
balancing of case loads among the civil Supreme Court Justices, there is no
appeal by litigants or attorneys of the case assignment. The decision of the
Supreme Court Clerk/Administrative Judge regarding assignment of a case is
final and is not subject to review or appeal.
Guidelines for Assignment of Cases to the Commercial Division, available at
http: // www.courts.state.ny.us / comdiv / guidelines _ for _ assignment _ of _ casesMC.
htm (last visited Oct. 7, 2004).

NASSAU COUNTY
GUIDELINES FOR ASSIGNMENT OF CASES TO THE COMMERCIAL PARTS
In general, the Commercial Parts of the Supreme Court, Nassau County, entertain
complex commercial and business disputes in which a party seeks compensatory
damages totaling $75,000 or more. Due to caseload considerations, the Justices
are empowered to transfer out of the Division cases which, in their judgment, do
not fall within this category notwithstanding that a party has described the case
as “commercial” on the RJI. The principles set out below will guide the exercise
of this authority. Parties should adhere to these principles when designating a
The Creation and Jurisdiction of Business Courts in the Last Decade 259

case type on the RJI. (See Paragraph (c) for documentation which should accom-
pany the RJI).

(a) The following will presumptively be transferred out of the Division even if
the monetary threshold is met:
(1) Suits to collect professional fees;
(2) Cases seeking a declaratory judgment as to insurance coverage for a per-
sonal injury or non-commercial property damage action;
(3) Residential real estate disputes, including landlord-tenant matters;
(4) Proceedings to enforce a judgment regardless of the nature of the under-
lying case;
(5) First-party insurance claims and actions by insurers to collect premiums
or rescind policies; and
(6) Attorney malpractice actions.
(b) Actions in which the principal claims involve the following will presumptively
be retained in the Division provided that the money threshold is met:
(1) Breach of contract or fiduciary duty, fraud, misrepresentation, business
tort (e.g., unfair competition), or statutory violation arising out of busi-
ness dealings (e.g., sales of assets or securities, corporate structurings,
partnership, shareholder, joint venture, and other business agreements,
trade secrets and restrictive covenants);
(2) Transactions governed by the Uniform Commercial Code (exclusive of
those concerning individual coop units);
(3) Transactions involving commercial real property;
(4) Shareholder derivative actions and commercial class actions;
(5) Commercial bank transactions;
(6) Internal affairs of business organizations or liability to third parties of
officials thereof;
(7) Malpractice by accountants or actuaries;
(8) Environmental insurance coverage litigation; and
(9) Corporation or Partnership dissolutions.
(c) The determination as to whether a case should be retained in a Commercial
Part will be made as soon as a matter is assigned to a Justice. For this purpose,
counsel must annex a brief sworn statement justifying the Commercial des-
ignation, and a copy of the summons and complaint or summons with notice,
if any, to any submission accompanying an RJI. Retained cases will remain in
the Commercial Part.
(d) Special proceedings (including applications pursuant to CPLR 3102(c) and
(e) relating to CPLR Article 75) and foreclosures are randomly assigned among
all Justices in the Supreme Court, Nassau County. Even when parties believe
that a special proceeding or foreclosure has a “commercial” character, the
“special proceedings” or “foreclosure” portion of the RJI should be completed
by the filing party, not the “commercial” section. However, prior to the actual
assignment of the matter to a Justice, a party to a commercial special pro-
ceeding may apply to the Administrative Judge to override the computer and
260 The Business Lawyer; Vol. 60, November 2004

designate the matter as “commercial” for treatment if it raises issues of ex-


traordinary complexity.
(e) An order of transfer issued by a Justice of a Commercial Part is an adminis-
trative matter. A party claiming to have been aggrieved by such an order may
seek review by letter application (two pages maximum, with a copy to all
parties) to the Administrative Judge. Any such application that is not made
promptly after the issuance of the transfer order will be denied as untimely
irrespective of its merits. The order of the Administrative Judge is final and
subject to no further review or appeal.
Guidelines for Assignment of Cases to the Commercial Parts, available at http://
www.courts.state.ny.us/comdiv/nassauguidelines.htm (last visited Oct. 7, 2004).

SUFFOLK COUNTY
GUIDELINES FOR ASSIGNMENT OF CASES TO THE COMMERCIAL PART
In general, the Commercial Part of the Supreme Court, Suffolk County, entertains
complex commercial and business disputes in which a party seeks compensatory
damages totaling $25,000 or more. The Justice assigned is authorized to transfer
out of the Division cases which, in his or her judgment, do not fall within this
category notwithstanding that a party has described the case as “commercial” on
the RJI. The principles set out below will guide the exercise of this authority.
Parties should adhere to these principles when designating a case type on the RJI
(See Paragraph (C) for documentation which should accompany the RJI).
(A) The following will presumptively be transferred out of the Division even if
the monetary threshold is met:
(1) Suits to collect professional fees;
(2) Cases seeking a declaratory judgment as to insurance coverage for per-
sonal injury or property damage action;
(3) Landlord-tenant matters, Yellowstone applications and other real estate
disputes;
(4) Proceedings to enforce a judgment regardless of the nature of the un-
derlying case;
(5) First-party insurance claims and actions by insurers to collect premiums
or rescind policies; and
(6) Attorney malpractice actions.
(B) Actions in which the principal claims involve the following will presump-
tively be retained in the Division, provided that the money threshold is met:
(1) Breach of contract or fiduciary duty, fraud, misrepresentation, business
tort (e.g., unfair competition), or statutory violation arising out of busi-
ness dealings (e.g., sales of assets or securities, corporate structurings,
partnership, shareholder, joint venture, and other business agreements,
trade secrets and restrictive covenants);
(2) Transactions governed by the Uniform Commercial Code (exclusive of
those concerning individual coop units);
The Creation and Jurisdiction of Business Courts in the Last Decade 261

(3) Complicated transactions involving commercial real property;


(4) Shareholder derivative actions and commercial class actions;
(5) Commercial bank transactions;
(6) Internal affairs of business organizations or liability to third parties of
officials thereof;
(7) Malpractice by accountants or actuaries;
(8) Complicated environmental insurance coverage litigation; and
(9) Corporate or Partnership dissolutions.
(C) The determination as to whether a case should be retained in the Commercial
Part will be made as soon as possible. For this purpose, counsel must annex
an affirmation form . . . justifying the Commercial designation, and a copy
of the summons and complaint or summons with notice, if any, to any sub-
mission accompanying an RJI. Retained cases will remain in the Commercial
Part.
(D) Special proceedings (including applications pursuant to CPLR 3102(c) and
(e) relating to CPLR Article 75) and foreclosures are randomly assigned
among all Justices in the Supreme Court, Suffolk County. Even when parties
believe that a special proceeding or foreclosure has a “commercial” character,
the “special proceedings” or “foreclosure” portion of the RJI should be com-
pleted by the filing party, not the “commercial” section. However, prior to
the actual assignment of the matter to a Justice, a party to a commercial
special proceeding may apply to the Administrative Judge to override the
computer and designate the matter as “commercial” for treatment if it raises
issue [sic] of extraordinary complexity.
(E) An order of transfer issued by the Justice of the Commercial Part is an ad-
ministrative matter. A party claiming to have been aggrieved by such an order
may seek review by letter application (two pages maximum, with a copy to
all parties) to the Administrative Judge. Any such application that is not made
promptly after the issuance of the transfer order will be denied as untimely
irrespective of its merits. The order of the Administrative Judge is final and
subject to no further review or appeal.
Guidelines for Assignment of Cases to the Commercial Part, available at http://
www.courts.state.ny.us/comdiv/Suffolk_guidelines_for_assignment.htm (last vis-
ited Oct. 7, 2004).

WESTCHESTER COUNTY
COMMERCIAL DIVISION PART RULES
January, 2002
[COMMERCIAL COURT ASSIGNMENT PROCEDURES MODIFIED, AND RULE
21 AND APPENDIX A ADDED, EFFECTIVE MAY 1, 2004.]
The following are the procedures and rules governing practice in the Com-
mercial Division-Westchester County.
262 The Business Lawyer; Vol. 60, November 2004

COMMERCIAL COURT ASSIGNMENT PROCEDURES


The Clerk of the Supreme Court shall review and determine assignments of
actions to the Commercial Division, based upon the designation contained in the
Request for Judicial Intervention, and upon the facts and circumstances of each
case as stated in the summons and complaint. A request for Judicial Intervention
which is marked “Commercial” must be accompanied by a “Commercial Division
certification” (Rule 21) identifying the nature of the lawsuit and the reason for
the assignment to the Commercial Division. A complete set of pleadings must
accompany such certification and be annexed to the RJI. Since the assignment of
any case in the Supreme Court is based on various criteria, including the balancing
of case loads among Supreme Court Justices, there is no appeal of the case as-
signment by litigants or attorneys.

CRITERIA FOR COMMERCIAL COURT


The definition of a “commercial case”, as determined by the Commercial Di-
vision of Supreme Court, is as follows:

All business and commercial disputes in which the amount at issue generally
involves damage claims in a minimum amount of $100,000.00, or claims
for unspecified amounts where the value of the commercial asset in dispute
exceeds $100,000.00.

Such business and commercial disputes shall include, without limitation, the fol-
lowing types of cases:

CONTRACT
1. Breach of contract, fraud or misrepresentation actions involving:
(a) Purchase or sale of securities.
(b) Purchase or sale of the assets of a business, or merger, consolidation or
recapitalization of a business.
(c) Purchase or sale or lease of, or security interest in, commercial real prop-
erty or personal property.
(d) Partnership, shareholder or joint venture agreements.
(e) Franchise, distribution or licensing agreements.

BUSINESS CORPORATION LAW


2. (a) Shareholder derivative actions.
(b) Actions involving Judicial Dissolution.
(c) Actions involving liability and indemnity of corporate directors and
officers.
(d) Actions involving the internal affairs of corporations, such as voting and
inspection rights of shareholders or directors, authorization of corporate
acts or interpretations of articles or by-laws.
(e) Actions involving foreign corporations authorized to do business in the
State of New York.
The Creation and Jurisdiction of Business Courts in the Last Decade 263

(f ) Actions involving appointment of a Receiver of property of domestic or


qualified foreign corporations.
PARTNERSHIP LAW
3. Actions involving property rights of general and limited partners.
4. Actions involving partnership, general business operation, dissolution and
creditors’ rights.
UNIFORM COMMERCIAL CODE
5. Actions involving the provisions of the Uniform Commercial Code.
OTHER COMMERCIAL MATTERS
6. Actions involving employment agreements or employee incentive or retirement
plans (not including qualified retirement plans) in which business or com-
mercial issues predominate.
7. Declaratory judgment actions and third party indemnification claims against
insurance companies where the underlying cause of action is contract in
nature.
8. Commercial class actions.
MATTERS EXCLUDED FROM THE COMMERCIAL DIVISION
• Real Estate foreclosure actions.
• Proceedings to enforce a judgment.
• Products liability claims, including claims based upon warranty of mer-
chantability and/or fitness for a particular use.
• Discharge, modification or foreclosure of mechanics’ liens.
• Declaratory judgment actions involving indemnification claims under in-
surance policies relating to underlying actions which are not commercial
in nature, including, but not limited to, underlying claims for fire loss,
motor vehicle actions and tort claims.
• Actions by or against Medicare, Medicaid, or the Department of Social
Services.
• Discrimination cases.
• Collection matters involving legal, medical, accounting, architectural fees
or other professional fees.
....
Rule 21 Commercial Division Attorney’s Certification. The certification requires
verification by counsel that the case meets the eligibility requirements set forth in
these Rules. (See Appendix A).

APPENDIX A
FORM OF COMMERCIAL DIVISION ATTORNEY’S CERTIFICATION
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
264 The Business Lawyer; Vol. 60, November 2004

--------------------------------------------------------------X
Plaintiff(s)
COMMERCIAL DIVISION ATTORNEY’S
CERTIFICATION
- against -
Index No.
Defendant(s).
--------------------------------------------------------------X

, an attorney duly admitted to practice law before the


Courts of the State of New York, hereby affirms the following statements to be
true under the penalties of perjury:

1. I am the attorney for the and submit this affirmation


in support of assignment of this action to the Commercial Division.
2. This case involves .
3. I am fully familiar with the facts and pleadings in this action and have
reviewed the Rules of the Commercial Division, Westchester County, including
the Guidelines for the Assignment of Cases to a Commercial Part.
4. I believe that this case complies with the Guidelines for the Assignment of
Cases to a Commercial Part and should be assigned to the Commercial Division.

Dated:

Commercial Division Part Rules, available at http://www.nycourts.gov/comdiv/


WestChester_guidelines_for_cases.htm (last visited Oct. 7, 2004).

NORTH CAROLINA
All cases are assigned to the Business Court by the Chief Justice of the North
Carolina Supreme Court. . . . [T]he Memorandum to Senior Resident Superior
Court Judges from Chief Justice Lake . . . containing his “Guidelines for Assign-
ment of Cases to the North Carolina Business Court” [is included below]. It is a
useful document which explains the policies the Chief Justice follows. You are
not required to waive a jury trial in order to have a case assigned and the case
will be tried in the county in which it is filed.
Under Rule 2.1, the Chief Justice may designate any case [or group of cases]
as complex business. The Rule provides that a senior resident superior court
judge, chief district court judge, or presiding superior court judge may ex mero
motu, or on motion of a party, recommend to the Chief Justice that a case or cases
be designated as complex business. Thus, the procedure for initial designation as
complex business does not differ from the procedure for having cases designated
as exceptional. Cases may be assigned over the objection of one or all of the
parties. However, once a case is designated as complex business, it is automatically
assigned to a Special Superior Court Judge for Complex Business Cases. In this
The Creation and Jurisdiction of Business Courts in the Last Decade 265

respect the procedure differs from previous practice for exceptional cases in that
heretofore the parties had generally agreed upon a superior court judge to hear
the case as exceptional and secured his or her prior agreement to handle the case.
That flexibility is not available with the complex business designation. Also, the
Special Superior Court Judge for Complex Business Cases must write an opinion
on final disposition of the case. Once a case is designated as complex business,
it stays with the business court for all purposes, including trial.
The process for appeals from a decision of the Special Superior Court Judge
for Complex Business Cases does not differ from appeals from other superior
court orders and judgments.

Definition of a Complex Business Case

The Supreme Court purposefully chose not to define the term “complex busi-
ness case” in Rule 2.1. It believed the absence of a definition would allow litigants
to seek designation with respect to any business issue that they believed required
special judicial expertise in business matters. It also provided the court with the
flexibility to respond to requests that might not have been anticipated when the
rule was amended.
Both the Commission and the Supreme Court contemplated that cases involv-
ing significant issues under certain chapters of the North Carolina General Statutes
would be designated as complex business. Those chapters include:

Chapter 55 Business Corporation Act


Chapter 55B Professional Corporations
Chapter 57C Limited Liability Companies
Chapter 59 Partnerships
Chapter 78A Securities Act
Chapter 78B Tender Offer Disclosure Act
Chapter 78C Investment Advisors Act

One of the key factors in assessing whether or not a case should be designated
as complex business is whether the outcome will have implications for business
and industry beyond the conflicts of the parties to the litigation. If a written
decision on disposition of the case would provide predictability for others in the
same business or industry in making their business decisions, the case will more
likely be considered for designation.
There are also other procedural indicators of complex business cases. Such
cases may be time sensitive, paper intensive or laden with discovery disputes.
They may have complex legal and evidentiary issues, multiple parties and juris-
dictions, and have a significant impact on the parties’ business, whether it be from
a monetary or a corporate governance standpoint.

How a Case is Assigned to the Business Court, available at http://www.ncbusiness


court.net/New/aboutcourt/ (last visited Oct. 7, 2004).
266 The Business Lawyer; Vol. 60, November 2004

MEMORANDUM
TO: All Superior Court Judges
FROM: I. Beverly Lake, Jr.
Chief Justice
Supreme Court of North Carolina
David F. Hoke
Assistant Director
Administrative Office of the Courts
DATE: March 7, 2001
RE: Guidelines for Assignment of Cases to the North Carolina Business
Court
When the North Carolina Business Court was established by amending Rule 2
of the General Rules of Practice for the Superior and District Courts, the Supreme
Court had two goals in mind. The first was the establishment of a court where
complex business litigation could be handled by one judge from beginning to
end, thus reducing the problems of discontinuity created by the normal rotation
system. Secondly, the business court was established to generate a body of case
law in our State on corporate governance issues. The Supreme Court envisioned
that cases arising under Chapter 55 (North Carolina Business Corporation Act),
Chapter 55B (Professional Corporation Act), Chapter 57C (North Carolina Lim-
ited Liability Company Act.), Chapter 59 (Uniform Limited Partnership Act),
Chapter 78A (North Carolina Securities Act), Chapter 78B (Tender Offer Disclo-
sure Act), and Chapter 78C (Investment Advisers) would be assigned to the busi-
ness court so that opinions could be written which would provide uniform guid-
ance on corporate governance issues for North Carolina companies. Antitrust was
another area in which the Supreme Court believed a business court would prove
beneficial.
This memorandum will explain the policies that the Chief Justice will follow
in assigning cases to the business court under Rule 2. In addition, the questions
of how cases are assigned to the business court and what criteria should be used
in deciding which cases to recommend for assignment to the business court as a
complex business case or as a regular Rule 2.1 case will be addressed.
At the outset, some common misconceptions about the business court may
need to be dispelled. First, cases assigned to the business court are tried in the
county in which they are filed. They are not moved unless the parties request it.
Second, there is no dollar threshold that must be alleged in order to support
assignment. Third, right to a jury trial is not eliminated by assignment to the
business court. And fourth, although the business court has advanced technology
and e-filing capability, attorneys are not required to use the technology.
Rule 2 affords you discretion in recommending cases be assigned as either
complex business cases or exceptional cases under Rule 2.1. You may recommend
assignment on your own motion or motion of a party; consent is not required.
Your recommendation may be made over the objection of one or more parties.
The Creation and Jurisdiction of Business Courts in the Last Decade 267

Judge Ben Tennille is currently the only Special Superior Court Judge desig-
nated for assignment to complex business cases. With respect to regular Rule 2.1
exceptional case designations, the policy remains the same: In order to obtain
exceptional case designation, the parties should secure the prior agreement of a
Superior Court Judge to handle the case as exceptional before requesting such
designation. Judge Tennille is assigned regular Rule 2.1 exceptional cases in ad-
dition to complex business cases.
Based upon current records of complex business case assignments, the Chief
Justice holds the opinion that the business court can be more accurately utilized
for complex business cases. If there is any uncertainty about the proper classifi-
cation of a case, the case assignment recommendation may be either complex
business or exceptional, and the Chief Justice will determine which classification
is appropriate. Normally, cases arising under the chapters of the General Statutes
referenced above will be assigned as complex business cases. Additionally, please
recommend assignment of any cases involving removal of a director, dissent and
appraisal, involuntary dissolution of a corporation, or other corporate governance
disputes. Also, Meiselman cases involving disputes in family held businesses are
ideal candidates for assignment as complex business cases. Partnership disputes,
as well as shareholder derivative actions, are also usually assigned as complex
business cases. In order for our judicial system to build a consistent body of case
law, these types of cases must be assigned to the business court on a regular basis,
and early identification and assignment is preferable.
Other examples of cases that are good candidates for assignment to the business
court include: contractual disputes that are motion and paper intensive, involve
protracted trials, and require significant judicial management; antitrust and theft
of trade secret cases; and cases involving determination of legal issues that will
have an impact on industry or business practices beyond the confines of the case
itself. Some, but not all, class actions may be good candidates for assignment,
and the decision on assignment should be made before the issue of class certifi-
cation is decided.
Requests for assignment of cases to the business court should be addressed to
the Chief Justice, but sent to the attention of David F. Hoke, Assistant Director,
Administrative Office of the Courts, at Post Office Box 2448, Raleigh, NC 27602.
The request should include a statement of the nature of the case, the reasons why
it should be assigned, whether the parties have consented to assignment, and the
names and addresses of counsel for the parties. In lieu of a detailed statement of
the reasons for assignment, any pleadings or motions setting forth those reasons
may be attached to the request. Any objections to assignment should also be
included. To help expedite the process, please send a copy of the recommendation
of assignment simultaneously to Judge Tennille at Suite 200, 200 S. Elm Street,
Greensboro, NC 27401.
If you have any questions, please do not hesitate to contact Judge Tennille at
(336) 334-5252 or Mr. Hoke at (919) 733-7107.
268 The Business Lawyer; Vol. 60, November 2004

Memorandum from the Chief Justice of the Supreme Court of North Carolina, to
North Carolina Superior Court Judges (March 7, 2001), available at http://www.
ncbusinesscourt.net/New/aboutcourt/ (last visited Oct. 7, 2004).

North Carolina Superior Court Rule 2.1 states:


Rule 2.1. Designation of exceptional civil cases and complex business cases.
(a) The Chief Justice may designate any case or group of cases as (a) “exceptional”
or (b) “complex business.” A senior resident superior court judge, chief dis-
trict court judge, or presiding superior court judge may ex mero motu, or on
motion of any party, recommend to the Chief Justice that a case or cases be
designated as exceptional or complex business.
(b) Such recommendation for exceptional cases may include special areas of ex-
pertise needed by the judge to be assigned and may include a list of recom-
mended judges. Every complex business case shall be assigned to a special
superior court judge for complex business cases, designated by the Chief
Justice under Rule 2.2, who shall issue a written opinion upon final dispo-
sition of the case.
(c) Such recommendation shall be communicated to the Chief Justice through
the Administrative Office of the Courts.
(d) Factors which may be considered in determining whether to make such des-
ignations include: the number and diverse interest of the parties; the amount
and nature of anticipated pretrial discovery and motions; whether the parties
voluntarily agree to waive venue for hearing pretrial motions; the complexity
of the evidentiary matters and legal issues involved; whether it will promote
the efficient administration of justice; and such other matters as the Chief
Justice shall deem appropriate.
(e) The Chief Justice may enter such orders as are appropriate for the pretrial,
trial, and other disposition of such designated case or cases. (Adopted January
5, 1988; amended August 28, 1995.)

OKLAHOMA
SECTION 16. AMENDATORY 20 O.S. 2001, Section 91.2, is amended to read
as follows:
Section 91.2 A. To facilitate the trial and disposition of cases, actions filed in
the district court shall be assigned to various dockets by the clerk of the court
pursuant to the direction and supervision of the presiding judge of the district.
Until changed by order of the Supreme Court, only the following dockets are
established: . . . and a business docket for business court divisions of the court
created pursuant to Section 17 of this act.
....
SECTION 17. NEW LAW A new section of law to be codified in the Oklahoma
Statutes as Section 91.7 of Title 20, unless there is created a duplication in num-
bering, reads as follows:
The Creation and Jurisdiction of Business Courts in the Last Decade 269

A. The Oklahoma Legislature finds that, due to the complex nature of litigation
involving highly technical commercial issues, there is a need for a court in
Oklahoma’s most populated counties with specific jurisdiction over actions
involving such commercial issues.
B. The Supreme Court is authorized to create a business court division within
the district court of any judicial district containing a municipality with a popu-
lation in excess of three hundred thousand (300,000), according to the latest
Federal Decennial Census.
C. The Supreme Court shall promulgate rules for the establishment and jurisdic-
tion of the business court divisions.
2003 Okla. H.B. 2661, Oklahoma Second Session of the 49th Legislative Session,
Sections 16 and 17, enacted May 28, 2004, available at http://www2.lsb.state.
ok.us/2003-04hb/hb2661_enr.rtf (last visited Oct. 7, 2004).

PENNSYLVANIA
PHILADELPHIA COUNTY
ASSIGNMENT OF CASES SUBJECT TO COMMERCE PROGRAM
1. Cases Subject to Commerce Program. Notwithstanding anything to the contrary
in General Court Regulation 95-2 (Day Forward Program) or any other General
Court Regulation, Jury, Non-Jury & Equity, and Class Action cases filed on or
after January 1, 2000, but not Arbitration cases, shall be assigned to the Commerce
Program if they are among the following types of actions:
1. Actions relating to the internal affairs or governance, dissolution or liquida-
tion, rights or obligations between or among owners (shareholders, partners,
members), or liability or indemnity of managers (officers, directors, managers,
trustees, or members or partners functioning as managers) of business cor-
porations, partnerships, limited partnerships, limited liability companies or
partnerships, professional associations, business trusts, joint ventures or other
business enterprises, including but not limited to any actions involving in-
terpretation of the rights or obligations under the organic law (e.g., Pa. Busi-
ness Corporation Law), articles of incorporation, by-laws or agreements gov-
erning such enterprises;
2. Disputes between or among two or more business enterprises relating to
transactions, business relationships or contracts between or among the busi-
ness enterprises. Examples of such transactions, relationships and contracts
include:
a. Uniform Commercial Code transactions;
b. Purchases or sales of businesses or the assets of businesses;
c. Sales of goods or services by or to business enterprises;
d. Non-consumer bank or brokerage accounts, including loan, deposit cash
managements and investment accounts;
e. Surety bonds;
270 The Business Lawyer; Vol. 60, November 2004

f. Purchases or sales or leases of, or security interests in, commercial, real


or personal property; and
g. Franchisor/franchisee relationships.
3. Actions relating to trade secret or non-compete agreements;
4. “Business torts,” such as claims of unfair competition, or interference with
contractual relations or prospective contractual relations;
5. Actions relating to intellectual property disputes;
6. Actions relating to securities, or relating to or arising under the Pennsylvania
Securities Act;
7. Derivative actions and class actions based on claims otherwise falling within
these ten types, and consumer class actions other than personal injury and
products liability claims;
8. Actions relating to corporate trust affairs;
9. Declaratory judgment actions brought by insurers, and coverage disputes and
bad faith claims brought by insureds, where the dispute arises from a business
or commercial insurance policy, such as a Comprehensive General Liability
policy, and;
10. Third-party indemnification claims against insurance companies where the
subject insurance policy is a business or commercial policy and where the
underlying dispute would otherwise be assigned to the Commerce Program,
not including claims where the underlying dispute is principally a personal
injury claim.
All of the above types of actions may involve individuals named as parties, in
addition to business enterprises, so long as all other criteria are met and the
essential nature of the litigation is a business dispute. For example, a dispute over
a commercial loan may include individual guarantors as either plaintiffs or defen-
dants, as the case may be, but such a lawsuit would still be a commercial dispute.
2. Cases Not Subject to the Commerce Program. The following types of matters
are not to be included in the Commerce Program:
1. Matters subject to Compulsory Arbitration in this Court or to the jurisdiction
of the Municipal Court, including any appeals.
2. Personal injury, survival or wrongful death matters.
3. Individual (non-class) consumer claims against businesses or insurers, in-
cluding products liability and personal injury cases.
4. Matters involving occupational health or safety.
5. Environmental claims not involved in the sale or disposition of a business
and other than those addressed in Commerce Program types 9 or 10 above.
6. Matters in eminent domain.
7. Malpractice claims, other than those brought by business enterprises against
attorneys, or accountants, architects or other professionals in connection with
the rendering of professional services to the business enterprise.
8. Employment law cases, other than those referenced in Commerce Program
type 3 above.
9. Administrative agency, tax, zoning and other appeals.
The Creation and Jurisdiction of Business Courts in the Last Decade 271

10. Petition Actions in the nature of Change of Name, Mental Health Act Peti-
tions, Petitions to appoint an Arbitrator, Government Election Matters, Leave
to Issue Subpoena, Compel Medical Examination.
11. Individual residential real estate and non-commercial landlord-tenant disputes.
12. Domestic relations matters, and actions relating to distribution of marital
property, custody or support.
13. Any matter required by statute, including 20 Pa.C.S. Chapter 7, §§ 711 &
713, to be heard in the Orphans’ Court or Family Court Division of the
Philadelphia Court of Common Pleas, or other matter which has heretofore
been within the jurisdiction of the Orphans’ Court of Family Court Division
of this Court.
14. Any criminal matter other than criminal contempt in connection with a Com-
merce Program action.
15. Such other matters as the Court shall determine.
Administrative Docket No. 01-2000, 30 Pa.B. 1362, available at http://www.
aopc.org/judicial-council/local-rules/philadelphia/philadel_chg_010100a.pdf
(last visited Oct. 7, 2004).

RHODE ISLAND
STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
PROVIDENCE, SC.
SUPERIOR COURT
ADMINISTRATIVE ORDER NO. 2001-9
RE: BUSINESS CALENDAR
There is hereby established for the Counties of Providence and Bristol, a “Business
Calendar.”
I. Civil actions in which the principal claim or claims involve the following
are appropriate matters to be assigned to the Business Calendar for all pur-
poses, including motion practice, discovery disputes, injunctive relief and
hearing on the merits (with or without a jury);
(a) Breach of contract or fiduciary duties, fraud, misrepresentation, busi-
ness tort or statutory violations arising out of business dealings and/or
transactions;
(b) Transactions governed by the provisions of the Uniform Commercial
Code;
(c) Complicated transactions involving commercial real property;
(d) Shareholder derivative actions;
(e) Commercial class actions;
(f ) Commercial Bank transactions;
(g) Matters affecting the internal affairs or governance of business organi-
zations or entities;
(h) Business insolvencies and receiverships.
272 The Business Lawyer; Vol. 60, November 2004

II. Simple collection matters, declaratory judgment proceedings with respect


to insurance coverage, confirmation or vacation of arbitration awards, and
general landlord and tenant issues shall not be assigned to the Business
Calendar.
III. New matters shall be assigned to the Business Calendar at the request of
the plaintiff upon the filing of the Complaint, or of the defendant, not later
than ten days following the filing of defendant’s entry of appearance, but
only with the assent of the Justice designated to be in charge of the Business
Calendar. In this connection, the party moving shall set up, as soon as
practicable, a chambers conference with said Justice.
IV. In connection with cases presently pending, but not yet assigned to a trial
date, either party may request assignment to the Business Calendar with the
assent of such Justice procured at a conference to be set up as aforesaid.
V. It is the intent of the Superior Court to process matters on the Business
Calendar in as expeditious a manner as possible. To that end, the Justice in
charge of the Calendar is vested with the power to require mandatory sub-
mission of the dispute to non-binding mediation. Failure to comply with
an Order to that effect may be sanctionable.
VI. The Justice in charge of the Business Calendar may establish generally, or
in a particular case, informal procedures not inconsistent with law which
he/she believes will be helpful in achieving prompt resolution of discovery
disputes or other preliminary matters.
VII. In the event of the absence of the Justice in charge of the Business Calendar,
any application or motions with respect to matters on the Business Calendar
should be taken up with the Justice in charge of the Formal and Special
Cause Calendar.
VIII. The Business Calendar to commence operation on Monday, June 4, 2001,
in Courtroom No. 17. Justice Michael Silverstein will be in charge of said
Calendar from June 4, 2001, through Tuesday, December 18, 2001.

BY ORDER OF:

JOSEPH F. RODGERS, JR.


PRESIDING JUSTICE
DATED: April 17, 2001
R.I. Super Ct. Admin. Order No. 2001-9, available at http://www.courts.state.ri.us/
superior/pdfadministrativeorders/2001-9.pdf (last visited Oct. 7, 2004).
The Creation and Jurisdiction of Business Courts in the Last Decade 273

APPENDIX B

EXPERIENCES IN SOME OTHER JURISDICTIONS WITH


EFFORTS TO ESTABLISH BUSINESS COURTS

HAWAII
Hawaii’s Chapter of the American Judicature Society, has assembled a fifteen
member “Special Committee on Business Courts” to make an inquiry into “whether
Hawaii should or should not have a business court.” Erika Engle, New Hawaii
Business Court Gets Gaveled Into Possibility, HONOLULU STARBULLETIN, Apr. 11,
2003, available at http://starbulletin.com/2003/04/11/business/engle.html (last vis-
ited Oct. 7, 2004).

MAINE
After her appointment, Maine’s current Chief Justice, the Honorable Leigh Sau-
fley, made the following comments in response to an interviewer’s question con-
cerning the idea of a separate business court or docket:
Another thing Chief Justice Wathen talked about was the creation of a busi-
ness court. Is that a proposal likely to survive during your leadership?
We’ve already undertaken a number of things that will help us to address
issues of businesses in the courts. I think what [former Chief Justice Wathen]
was talking about is a docketing system as opposed to a separate court.
Several states have done pilot projects with special docketing for certain
kinds of complex business cases. In Maine, we’ve undertaken the single
justice project in those areas most likely to get complex business litigation.
And then we have focused on complex litigation; in fact, we have one judge
who’s headed off for more training at one of the national conferences on
complex litigation. All those things will come together in a more cohesive
docketing system which essentially responds to what [former Chief Justice
Wathen] was concerned about: that business cases may tend to get lost in
the rush of everything else the courts are trying to do.
Meet Maine’s New Chief Justice, 17 ME. B. J. 14, 16 (2002). More recently, the
Chief Justice indicated that a business court in Maine is probably three to five
years away. Email from George F. Burns, Esquire, Bernstein, Shur, Sawyer & Nel-
son, P.A., to Lee Applebaum, Esquire, Fineman, Krekstein & Harris, P.C. (Oct. 2,
2003, 08:39 EST) (on file with authors) (Mr. Burns is an attorney with Bernstein,
Shur, Sawyer & Nelson, P.A. in Portland, Maine and has been involved in working
towards the creation of a business court in Maine).

MINNESOTA
Efforts at creating a business court have not proved successful. Docketing
changes have been made in court procedures in some of the larger Minnesota
274 The Business Lawyer; Vol. 60, November 2004

counties with a view to handling complex litigation matters of various sorts. Letter
from Thomas D. Feinberg, Esquire, to Lee Applebaum, Esquire, Fineman, Krek-
stein & Harris, P.C. (Sept. 15, 2003) (on file with authors).

MISSISSIPPI
“The Mississippi Secretary of State’s Business Law Advisory Group has discussed
the issue of business courts on several occasions and continues to explore the
feasibility of a business court. At the most recent meeting of the Business Law
Advisory Group the procedures in other states were discussed, as well as issues
unique to Mississippi.” Email from Henry Chatham, Esquire, Wise Carter Law
Firm, to Lee Applebaum, Esquire, Fineman, Krekstein & Harris, P.C. (Sept. 11,
2003, 11:16 EST) (on file with authors) (Mr. Chatham is with the Wise Carter
Law Firm in Jackson, Mississippi and is Mississippi’s State Bar Liaison to ABA
Committee on Corporate Laws).

OHIO
The Ohio State Bar Association approved proposed legislation to establish a
business court in Ohio in 1998; however, the legislation was not introduced
in the legislature. In January 2003, the Corporation Law Committee of the
OSBA established a subcommittee to review again the issue of establishing
a business court in Ohio. The Business Court subcommittee, chaired by
Harry Mercer, has been meeting and made an interim report to the Corpo-
ration Law Committee in September detailing the status of business courts
in a number of states. The subcommittee is expected to make recommen-
dations in a more detailed report to the Corporation Law Committee in
January 2004.
Email from Harry D. Mercer, Esquire, to Lee Applebaum, Esquire, Fineman, Krek-
stein & Harris, P.C. (Sept. 11, 2003, 09:48 EST) (on file with authors); see also
Dan Crawford, Ohio Bar Considers Push for Separate Business Court, BUS. FIRST OF
COLUMBUS, January 6, 1997, available at http://columbus.bizjounals.com/columbus/
stories/1997/01/06/story2.html (last visited Oct. 7, 2004) (reflecting efforts to-
ward establishing a business court as early as 1996); Cliff Peale, Business Courts
Proposed, CINCINNATI POST, Apr. 10, 1998, available at http://www.cincypost.com/
news/1998/court041098.html (last visited Oct. 7, 2004) (indicating Ohio Bar As-
sociation committee recommended a form of state-wide business court for the
purpose of seeking more expeditious case resolution, efficiency, consistency in
decisions, and decreasing backlog in the trial courts of general jurisdiction).

VIRGINIA
Although there were some efforts within the Virginia Bar Association suggesting
that inquiry be made into the creation of a business court in Virginia, it was
decided in October 2003 not to pursue such an effort. Email from David G.
The Creation and Jurisdiction of Business Courts in the Last Decade 275

Shuford, Esquire, to Lee Applebaum, Esquire, Fineman, Krekstein & Harris, P.C.
( June 3, 2004, 16:10 EST) (on file with authors).

WISCONSIN
In April of 1996, on recommendations made by a Special Task Force appointed
by then Governor Thompson, Chief Judge Patrick Sheedy of the Milwaukee
County Circuit Court implemented a business court pilot project and designated
two judges to the Special Business Court in Milwaukee. The court implemented
a set of summary proceeding rules limiting pleadings and calling for expedited
discovery. A party had to petition to be placed within the business court and a
decision was issued by a judge, whose decision could not be appealed. Milwaukee
County had revised its rules in 1998, eliminating monetary limitations and adding
the right to join third parties, pursue summary judgments and request a jury. The
process was voluntary, and still aimed at a highly expeditious resolution, though
not as streamlined as the original rules for summary proceedings. Due to the lack
of use, however, the Milwaukee Circuit Court business track is no longer active.
See generally Jane C. Schlict, Milwaukee’s New Business Court Rules, MBA MESSEN-
GER, Vol. 6, No. 5, May 1998; Pete Millard, Reworking the Business Courts, THE
BUS. J. OF MILWAUKEE, March 31, 1997; Maryland Business and Technology Court
Task Force Report, at appendix B, available at http://www.courts.state.md.us/
finalb&treport.pdf (last visited Oct. 7, 2004).
The Milwaukee Circuit Court’s Rules for Summary Proceedings for Business
Disputes, Milwaukee County Circuit Court Rules 330-338, however, can still be
located on the court’s web site: http://www.wisbar.org/rules/mil/mil3.html. Under
Milwaukee County Circuit Court Rule 330.D., business disputes are generally
defined as “any claim arising out of a commercial relationship, excluding claims
for personal, physical or mental injuries.” MILWAUKEE COUNTY CIR. CT. R. 330D,
available at http://www.wisbar.org/rules/mil/mil3.html (last visited Oct. 7, 2004).
Examples include securities disputes, asset sales, commercial leases, partnership
agreements, construction contracts, shareholder disputes, letters of credit, unfair
competition, and interference with business relations. See The Business Court Rules,
New and Speedy Options for Business Litigation, April 14, 1998, (provided for a
seminar presented by the Milwaukee Bar Association’s Civil Litigation Section on
Revised Business Court Rules on April 14, 1998 in Milwaukee).
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
IN AND FOR ORANGE COUNTY, FLORIDA

ADMINISTRATIVE ORDER
NO.: 2003-17-03

ORDER DESIGNATING “BUSINESS COURT” AS “COMPLEX BUSINESS


LITIGATION COURT” AND MODIFYING CRITERIA GOVERNING CASES FILED
THEREIN

WHEREAS, the Ninth Judicial Circuit established and operated a specialized

subdivision known as “Business Court” since January, 2004; and

WHEREAS, consideration has been given to a more proper and fitting designation of

such Court; and

WHEREAS, the number of complex commercial cases currently pending before the

Judge presiding over such cases is such that the Judge cannot devote the proper amount of time

and attention to the cases to effectuate appropriate case management and analysis of complex

issues, and

WHEREAS, the Business Section of the Orange County Bar Association has, after

careful study and consideration, proposed certain amendments to the criteria governing the cases

filed in Business Court,

NOW, THEREFORE, I, Belvin Perry, Jr., pursuant to the authority vested in me as

Chief Judge of the Ninth Judicial Circuit of Florida under Florida Rule of Judicial

Administration 2.050, order that:

I. Change of Designation of Business Court.

Effective immediately, the “Business Court” shall be designated as the “Complex

Business Litigation Court.” Criteria governing the assignment of cases to the Complex Business

Litigation Court are amended as outlined herein.

1
II. Cases Subject to the Complex Business Litigation Court.

The principles set out below shall guide the parties and the Court in the assignment of cases to the

Complex Business Litigation Court. Notwithstanding anything to the contrary in any prior general

Administrative Order or Court procedure, all jury, non-jury, injunction and class action cases shall be

assigned to the Complex Business Litigation Court, if they are among the following types of actions:

A. Any of the following where the amount in controversy is in excess of

$75,000.00:

1. Claims arising from U.C.C. related transactions;

2. Claims arising from the purchases and sales of businesses or the assets of a

business, including contract disputes, commercial landlord-tenant claims, and business torts;

3. Claims involving the sale of goods or services by or to business

enterprises;

4. Claims involving non-consumer bank or brokerage accounts, including

loan, deposit, cash management, and investment accounts;

5. Claims arising from the purchase, sale, lease of commercial real or

personal property or security interests therein;

6. Claims related to surety bonds;

7. Franchisee/franchisor relationships and liabilities;

8. Malpractice claims of non-medical professionals in connection with

rendering services to a business enterprise;

9. Insurance coverage disputes, bad faith suits, and third party indemnity

actions against insurers arising under policies issued to businesses, such as claims arising under a

commercial general liability policy or commercial property policy; and

2
10. Other complex disputes of a commercial nature, excluding those listed

in Section III, below. Cases eligible under this category will normally have four or more parties,

multiple claims and defenses, third party, cross or counterclaims, complex factual or legal issues, or

other unusual features warranting assignment to the Complex Business Litigation Court.

B. Any of the following without regard to the amount in controversy:

1. Actions relating to the internal affairs or governance, dissolution or

liquidation rights obligations between or among owners (shareholders, partners, members), or liability or

indemnity of managers (officers, directors, managers, trustees, or members or partners functioning as

managers) of corporations, partnerships, limited partnerships, limited liability companies or partnerships,

professional associations, business trusts, joint ventures or other business enterprises;

2. Actions relating to trade secrets and non-compete agreements;

3. Intellectual property claims;

4. Actions relating to securities or relating to or arising under the state

securities laws or antitrust statutes;

5. Shareholder derivative actions and class actions involving claims that are

subject to the Complex Business Litigation Court, pursuant to this Order; and

6. Actions relating to corporate trust affairs or director and officer liability.

III. Cases Not Subject to the Complex Business Litigation Court.

The following types of matters are not ordinarily to be assigned to the Complex Business Litigation

Court:

A. Appeals from the County Court;

B. Personal injury, survivor, or wrongful death matters;

C. All individual and class action consumer claims;

3
D. Matters involving occupational health or safety;

E. Environmental claims which do not involve the sale or disposition of a business or

the claims addressed in Section I, paragraphs 8 and 9, above;

F. Matters in eminent domain;

G. Malpractice claims, other than those brought by business enterprises against

attorneys, accountants, architects or other professionals in connection with the rendering of professional

services to the business enterprise;

H. Employment law cases, other than those addressed in Section II, paragraph B. 2.,

above;

I. Administrative agency, tax, zoning and other appeals;

J. Petition actions in the nature of change of name, mental health act, guardianship, or

government election matters;

K. Individual residential real estate and non-commercial landlord-tenant disputes;

L. Suits to collect professional fees;

M. Cases seeking a declaratory judgment as to insurance coverage for a

personal injury or property damage action;

N. Proceedings to enforce a judgment regardless of the nature of the

underlying case;

O. Actions by insurers to collect premiums or rescind policies;

P. Domestic relations matters, and actions relating to distribution of marital property,

custody, or support;

Q. Any matter required by statute or other law to be heard in some other court or court

4
division;

R. Any criminal matter, except criminal contempt in connection with a Complex

Business Litigation Court action;

S. Such other cases which are appropriately transferred out of the Complex Business Litigation

Court, pursuant to Section V of this Order.

IV. Assignment of Cases to the Complex Business Litigation Court.

A. Effective immediately, the Civil Cover Sheet shall include an additional line and

box where the party or attorney signing the Civil Cover Sheet must certify whether the action is appropriate

for assignment to the Complex Business Litigation Court. A "Complex Business Litigation Court

Addendum to Civil Cover Sheet" (“Addendum”), a sample of which is attached hereto as Exhibit “A,” is

hereby required to be filed with all initial filings that meet the Complex Business Litigation Court criteria

and which are filed on or after the date of this Order. The filing party or attorney shall indicate on the

Addendum the applicable type or types of action that qualify the case for assignment to the Complex

Business Litigation Court. A party’s or an attorney's signature on the Civil Cover Sheet shall constitute

certification that the matter is appropriate for the Complex Business Litigation Court. A copy of the Civil

Cover Sheet and Addendum shall be served on all parties.

B. Cases meeting the criteria to qualify for Complex Business Litigation Court,

pursuant to this Administrative Order, shall be assigned to Subdivision 32 in the Circuit Civil Division,

Orange County, by the Clerk of the Court.

C. Judges assigned to other Subdivisions in the Circuit Civil Division and/or

litigants may submit a request to the Administrative Judge of the Circuit Civil Division to assign/transfer a

pending case that meets the criteria of the Complex Business Litigation Court to Subdivision 32.

5
D. Controversies which may arise concerning the assignment/transfer of any case in

the Circuit Civil Division, including Complex Business Litigation Court cases, shall be resolved by the

Administrative Judge of the Circuit Civil Division.

V. Disputes Arising From the Civil Cover Sheet Designation.

If any party disagrees with the assignment or lack of assignment of a case to the Complex Business

Litigation Court, that party may file a “Motion to Transfer Divisions” with the Judge in the assigned

subdivision, and the motion will be resolved by the Administrative Judge of the Circuit Civil Division in

accordance with the Ninth Judicial Circuit Administrative Procedures for case re-assignment.

DONE AND ORDERED at Orlando, Orange County, Florida this 3rd day of November,

2005.

/s/ Belvin Perry, Jr.


Belvin Perry, Jr.
Chief Judge
Copies to:
Clerk of Courts, Orange County
Clerk of Courts, Osceola County
General E-Mail Distribution List
http://www.ninja9.org/adminorders/query.asp

6
EXHIBIT “A”
[CIVIL COVER SHEET COMPLEX BUSINESS LITIGATION COURT ADDENDUM]

7
CIVIL COVER SHEET COMPLEX BUSINESS LITIGATION COURT ADDENDUM
PARTY OR ATTORNEY FILING ACTION MUST SELECT WHICH APPLIES

Cases Subject to Complex Business Litigation Court. The principles set out below shall guide the parties and the Court
in the assignment of cases to the Complex Business Litigation Court. All jury, non-jury, injunction and class action cases
shall be assigned to the Complex Business Litigation Court if they are among the following types of actions:

A. Any of the following where the amount in controversy is in excess of $75,000.00:

1. Claims arising from U.C.C. related transactions;

2. Claims arising from the purchases and sales of business or the assets of a business
including contract disputes, commercial landlord-tenant claims and business torts;

3. Claims involving the sale of goods or services by or to business enterprises;

4. Claims involving non-consumer bank or brokerage accounts, including loan,


deposit, cash management, and investment accounts;

5. Claims arising from the purchase, sale, lease of real or personal property or
security interests therein;

6. Claims related to surety bonds;

7. Franchisee/franchisor relationships and liabilities;

8. Malpractice claims of non-medical professionals in connection with rendering


services to a business enterprise;

9. Insurance coverage disputes, bad faith suits, and third party indemnity actions
against insurers arising under policies issued to businesses, such as those claims arising under a commercial
general liability policy or commercial property policy; and

10. Other complex disputes of a commercial nature, excluding those listed in


Section III of Administrative Order Number 2003-17-2. Cases eligible under this category will normally have four
or more parties, multiple claims and defenses, third party, cross or counterclaims, complex factual or legal issues,
or other unusual features warranting assignment to the Complex Business Litigation Court.

B. Any of the following without regard to the amount in controversy:

1. Actions relating to the internal affairs or governance, dissolution or liquidation


rights or obligations between or among owners (shareholders, partners, members), or liability or indemnity of
managers (officers, directors, managers, trustees, or members or partners functioning as managers) of corporations,
partnerships, limited partnerships, limited liability companies or partnerships, professional associations, business
trusts, joint ventures or other business enterprises;

2. Actions relating to trade secrets and non-compete agreements;

3. Intellectual property claims;

8
4. Actions relating to securities or relating to or arising under the state securities
laws or antitrust statutes;

5. Shareholder derivative suits and class actions involving claims that are subject
to Complex Business Litigation Court , pursuant to Administrative Order Number 2003-17-2 ; and

6. Actions relating to corporate trust affairs or director and officer liability.

NOTE: A copy of the Civil Cover Sheet and this Addendum must be served with the Complaint for all Complex Business
Litigation Court cases. See Administrative Order Number 2003-17-2 for further Complex Business Litigation Court
requirements.

9
BUSINESS COURT PROCEDURES FOR THE NINTH JUDICIAL CIRCUIT COURT,
IN AND FOR ORANGE COUNTY, FLORIDA

SECTION 1 – PHILOSOPHY, SCOPE AND GOALS


1.1 - Citation to Procedures
1.2 - Purpose and Scope
1.3 - Goals
1.4 - Integration with Other Rules
SECTION 2 - CASE FILING, ASSIGNMENT, TRACKING AND IDENTIFICATION
2.1 - Cases Subject to Business Court
2.2 - Case Identification Numbers
SECTION 3 - VIDEOCONFERENCING
3.1 - By Agreement
3.2 - Responsibility for Videoconferencing Facilities
3.3 - Allocation of Videoconferencing Costs
3.4 - Court Reporter
3.5 - Exchange of Exhibits and Evidence to be Used in Videoconference Hearing
SECTION 4 - CALENDARING, APPEARANCES AND SETTLEMENT
4.1 - Preparation of Calendar
4.2 - Appearances
4.3 - Notification of Settlement
SECTION 5 - MOTION PRACTICE
5.1 - Form
5.2 - Content of Motions
5.3 - Certificate of Good Faith Conference
5.4 - Motions Decided on Papers and Memoranda
5.5 - Response to Motion and Memorandum
5.6 - Extension of Time for Filing Supporting Documents and Memoranda
5.7 - Reply Memoranda
5.8 - Font and Spacing Requirements
5.9 - Suggestion of Subsequently Decided Authority
5.10 - Motions Not Requiring Memoranda
5.11 - Failure to File and Serve Motion Materials
5.12 - Preparation of Orders
5.13 - Ex Parte
5.14 - Determination of Motions Through Oral Argument Without Briefs
5.15 - Motions to Compel and for Protective Order
5.16 - Motions to File Under Seal
5.17 - Emergency Motions
SECTION 6 - CASE MANAGEMENT NOTICE, MEETING, REPORT,
CONFERENCE AND ORDER
6.1 - Notice of Hearing and Order on Case Management Conference
6.2 - Case Management Meeting
6.3 - Joint Case Management Report
6.4 - Case Management Conference
6.5 - Case Management Order
SECTION 7 - DISCOVERY
7.1 - Presumptive Limits on Discovery Procedures
7.2 - Depositions
7.3 - Special Masters
7.4 - No Filing of Discovery Materials
7.5 - Discovery with Respect to Expert Witnesses
7.6 - Completion of Discovery
7.7 - Extension of the Discovery Period or Request for Additional Discovery
7.8 - Trial Preparation After the Close of Discovery
7.9 - Confidentiality Agreements
SECTION 8 - ALTERNATIVE DISPUTE RESOLUTION
8.1 – Alternative Dispute Resolution Mandatory in All Cases
8.2 - Non-Binding Arbitration
8.3 - Mediation
SECTION 9 - JOINT FINAL PRETRIAL STATEMENT
9.1 - Meeting and Preparation of Joint Final Pretrial Statement
9.2 - Contents of Joint Final Pretrial Statement
9.3 - Coordination of Joint Final Pretrial Statement
SECTION 10 - TRIAL MEMORANDA AND OTHER MATERIALS
10.1 - Trial Memoranda
SECTION 11 - FINAL PRETRIAL CONFERENCE
11.1 - Mandatory Attendance
11.2 - Substance of Final Pretrial Conference
SECTION 12 - SANCTIONS
12.1 - Grounds
SECTION 13 - TRIAL
13.1 - Examination of Witnesses
13.2 - Objections
SECTION 14 - COURTROOM DECORUM
14.1 - Communications and Position
14.2 - Professional Demeanor
SECTION 15 - JURIES
15.1 - Jury Instruction Conference
15.2 - Objections to Instructions
SECTION 16 - TRIAL DATES AND FINAL PRETRIAL PREPARATION
16.1 - Trial Date
SECTION 17 - WEB SITE AND PUBLICATION
17.1 - Web Site
SECTION 1 - PHILOSOPHY, SCOPE AND GOALS

1.1 - Citation to Procedures. These Procedures shall be known and cited as the Business
Court Procedures. They may also be referred to in abbreviated form as “BCP” or “Business Court
Procedures,” e.g., this section may be cited as “BCP 1.1.”
1.2 - Purpose and Scope. The Business Court Procedures are designed to facilitate the
proceedings of cases by the Ninth Judicial Circuit Business Court. The Business Court Procedures
shall apply to all actions in the Business Court Subdivision of the Civil Division of the Ninth Judicial
Circuit Court of Florida.
1.3 - Goals. The Business Court Procedures are intended to provide better access to Court
information for litigants, counsel and the public; increase the efficiency and understanding of Court
personnel, counsel and witnesses; decrease costs for litigants and others involved in the court system;
and facilitate the efficient and effective presentation of evidence in the courtroom. These Procedures
shall be construed and enforced to avoid technical delay, encourage civility, permit just and prompt
determination of all proceedings and promote the efficient administration of justice.
1.4 - Integration with Other Rules. These Procedures are intended to supplement, not
supplant, the rules adopted by the Supreme Court of Florida. Should any conflict be deemed to exist
between the Business Court Procedures and the rules, then the rules shall control.

SECTION 2 - CASE FILING, ASSIGNMENT, TRACKING AND IDENTIFICATION

2.1 - Cases Subject to Business Court. The principles set out in Amended Administrative
Order 2003-17-1, which is located on the Business Court Web Site at
http://www.ninja9.org/court/business/index-BC.htm, shall govern the assignment of cases to Business
Court.
2.2 - Case Identification Numbers. On assignment of any matter to the Business Court, the
matter shall retain the civil action number assigned to it by the Clerk of Courts.

SECTION 3 – VIDEOCONFERENCING

3.1 - By Agreement. By mutual agreement, counsel may arrange for any proceeding or
conference to be held by videoconference by coordinating a schedule for such meeting that is
convenient with the Business Court. All counsel and other participants shall be subject to the same
rules of procedure and decorum as if all participants were present in the courtroom.
3.2 - Responsibility for Videoconferencing Facilities. The parties are responsible for
obtaining all communications facilities and arranging all details as may be required to connect and
interface with the videoconferencing equipment available to the Business Court. The Business
Court will endeavor to make reasonable technical assistance available to the parties, but all
responsibility for planning and executing all technical considerations required to successfully hold
a videoconference shall remain solely with the parties.
3.3 - Allocation of Videoconferencing Costs. In the absence of a contrary agreement
among the parties, the parties participating by videoconference shall bear their own costs of
participating via this method.
3.4 - Court Reporter. Where any proceeding is held by videoconference, the court
reporter transcribing such proceeding will be present in the same room as the judge presiding over
the proceeding.
3.5 - Exchange of Exhibits and Evidence to be Used in Videoconference Hearing.
Any exhibits or evidence to be used in a videoconference hearing must be provided to opposing
counsel and to the Court five business days prior to the hearing. All exhibits or evidence so
provided shall bear exhibit tags marked with the case name, case number, identity of the
propounding party and an identification number. Any objections to any exhibit or evidence must
be provided to the Court in writing at least five days in advance of the hearing and reference the
appropriate exhibit tags.

SECTION 4 - CALENDARING, APPEARANCES AND SETTLEMENT

4.1 - Preparation of Calendar. The calendar for the Business Court shall be prepared under
the supervision of the Business Court Judge and published on the Business Court web site.
4.2 - Appearances. An attorney who is notified to appear for any proceeding before the
Business Court, must, consistent with ethical requirements, appear or have a partner, associate or
another attorney familiar with the case present.
4.3 - Notification of Settlement. When any cause pending in the Business Court is settled,
all attorneys or unrepresented parties of record must notify the Business Court Judge or the Judge’s
designee within twenty-four (24) hours of the settlement and must advise the Court of the party who
will prepare and present the judgment, dismissal or stipulation of dismissal and when such filings will
be presented.

SECTION 5 - MOTION PRACTICE

5.1 - Form. All motions, unless made orally during a hearing or a trial, shall be accompanied
by a memorandum of law, except as provided in BCP 5.10. Any memorandum of law shall be filed in
support of one motion only and shall not exceed twenty-five (25) pages in length. Separate motions
shall be filed separately and a memorandum of law filed in support of each. Motions that are
inextricably intertwined and either substantively related or in the alternative may be filed together.
5.2 - Content of motions. All motions shall state with particularity the grounds therefor,
shall cite any statute or rule of procedure relied upon and shall set forth the relief sought. Factual
statements in a motion for summary judgment shall be supported by specific citations to the
supporting documents. The parties shall not raise issues at the hearing on the motion that were not
addressed in the motion and memoranda in support of and in opposition to the motion. The practice
of offering previously undisclosed cases to the Court at the hearing is specifically discouraged.
5.3 - Certificate of Good Faith Conference. Before filing any motion in a civil case, the
moving party shall confer with counsel for the opposing party in a good faith effort to resolve the
issues raised by the motion and shall file with the motion a statement certifying that the moving party
has conferred with opposing counsel and that counsel have been unable to agree on the resolution of
the motion (the “Certificate”).
a. The term “confer,” as used herein, requires a substantive conversation in person or
by telephone in a good faith effort to resolve the motion without court action and
does not envision an exchange of ultimatums by fax or letter. Counsel who merely
attempt to confer have not conferred. Counsel must respond promptly to inquiries
and communications from opposing counsel. The Court will sua sponte deny
motions that fail to include an appropriate and complete Certificate under this
section.
b. The Certificate shall set forth the date of the conference, the names of the
participating attorneys, and the specific results achieved. It shall be the
responsibility of counsel for the movant to arrange for the conference.
c. No conference, and therefore no Certificate, is required in motions for injunctive
relief without notice, for judgment on the pleadings, summary judgment, or to
permit maintenance of a class action.
d. A party alleging that a pleading fails to state a cause of action will confer with
counsel for the opposing party before moving to dismiss, and, upon request of the
other party, will stipulate to an order permitting the filing of a curative amended
pleading in lieu of filing a motion to dismiss.
5.4 - Motions Decided on Papers and Memoranda. Motions shall be considered and
decided by the Court on the pleadings, admissible evidence, the court file, and memoranda, without
hearing or oral argument, unless otherwise ordered by the Court. Any party seeking oral argument
shall file a separate motion setting forth the reasons oral argument should be granted. If the Court
grants oral argument on any motion, it shall give the parties at least five (5) business days’ notice of
the date and place of oral argument. The Court, for good cause shown, may shorten the five (5) day
notice period. All papers relating to the issues to be argued at the hearing shall be delivered to
opposing counsel and the Court at least five (5) business days before the hearing. Service and receipt
of the papers less than five days before the hearing is presumptively unreasonable.
5.5 - Response to Motion and Memoranda. The respondent, if opposing a motion, shall file
a memorandum in opposition within twenty (20) days after service of the motion or within thirty (30)
days of service if the motion is for summary judgment. Memoranda in opposition shall not exceed
twenty-five (25) pages in length. If supporting documents are not then available, the respondent may
move for an extension of time. For good cause appearing therefore, a respondent may be required by
the Court to file any response and supporting documents, including a memorandum, within such
shorter period of time as the Court may specify.
5.6 - Extension of Time for Filing Supporting Documents and Memoranda. Upon proper
motion accompanied by a proposed order, the Court may enter an ex parte order, specifying the time
within which supporting documents and memoranda may be filed, if it is shown that such documents
are not available or cannot be filed contemporaneously with the motion or response. The time
allowed to an opposing party for filing a response shall not run during any such extension.
5.7- Reply Memorandum. The movant may file a reply memorandum within ten (10) days
of service of the memorandum in opposition to the motion. A reply memorandum is limited to
discussion of matters raised in the memorandum in opposition and shall not exceed ten (10) pages in
length.
5.8- Font and Spacing Requirements. All motions and memoranda shall be double-spaced
and in Times New Roman 14-point font or Courier New 12-point font.
5.9 - Suggestion of Subsequently Decided Authority. A suggestion of controlling or
persuasive authority that was decided after the filing of the last memorandum may be filed at any time
prior to the Court’s ruling and shall contain only the citation to the authority relied upon, if published,
or a copy of the authority if it is unpublished, and shall not contain argument.
5.10 - Motions Not Requiring Memoranda. Memoranda are not required by either the
movant or the opposing party, unless otherwise directed by the Court, with respect to the following
motions:
a. discovery motions;
b. extensions of time for the performance of an act required or allowed to be done, provided
that the request is made before the expiration of the period originally prescribed or
extended by previous orders;
c. to continue a pre-trial conference, hearing, or the trial of an action;
d. to add or substitute parties;
e. to amend the pleadings;
f. to file supplemental pleadings;
g. to appoint a next friend or guardian ad litem;
h. to stay proceedings to enforce judgment;
i. for pro hac vice admission of counsel who are not members of The Florida Bar;
j. relief from the page limitations imposed by these Procedures; and
k. request for oral argument.
The above motions must state good cause therefor and cite any applicable rule, statute or
other authority justifying the relief sought. These motions must be accompanied by proposed orders.
5.11 - Failure to File and Serve Motion Materials. The failure to file a memorandum
within the time specified in this section shall constitute a waiver of the right thereafter to file such
memorandum, except upon a showing of excusable neglect. A motion unaccompanied by a required
memorandum may, in the discretion of the Court, be summarily denied. Failure to timely file a
memorandum in opposition to a motion will result in the pending motion being considered and
decided as an uncontested motion.
5.12 - Preparation of Orders. In matters in which the Court does not prepare its own
orders, the Court will direct the prevailing party to prepare an order in accordance with its ruling. In
cases in which a party submits an order to the Court, multiple copies and addressed stamped
envelopes sufficient for all parties shall be submitted therewith. No order will be entered unless the
party proffering such an order represents that he or she has provided copies to the opposing parties in
advance, and they have no objection to the form of the order. In proposing an order entering a final
judgment of default, the party must contemporaneously provide the Court with sufficient information
establishing that the motion for entry of a final judgment by default should be granted. If an
agreement among the parties cannot be reached on a proposed order, the parties must convene an ex
parte hearing to address any objections to the proposed order.
5.13 - Ex Parte. The Court will convene ex parte on a schedule to be published on the
Business Court web site at http://www.ninja9.org/court/business/index-BC.htm. Ex Parte is reserved
for uncontested matters with the exception of disputes over the form of proposed orders as discussed
in BCP 5.12 above. The use of court reporters is not permitted at ex parte.
5.14 - Determination of Motions Through Oral Argument Without Briefs. The parties
may present motions and the Court may resolve disputes regarding the matters described in BCP 5.10
through the use of an expedited oral argument procedure. Applicable motions are those that are
limited to matters which can be argued and determined in twenty minutes or less, and may be heard
on the Court’s Short Matters docket, which requires coordination with counsel, but not the
reservation of a specific time through the judicial assistant. The dates and times of Short Matters
hearings will be posted on the Business Court web site at http://www.ninja9.org/court/business/index-
BC.htm.
5.15 - Motions to Compel and for Protective Order. Any party seeking to compel
discovery or to obtain a protective order with respect to discovery must identify the specific portion
of the material that is directly relevant and ensure that it is filed as an attachment to the application for
relief.
5.16 - Motions to File Under Seal. Whether documents filed in a case may be filed under
seal is a separate issue from whether the parties may agree that produced documents are confidential.
Motions to file under seal are disfavored. The court will permit the parties to file documents under
seal only upon a finding of extraordinary circumstances and particularized need. A party seeking to
file a document under seal must file a motion to file under seal requesting such Court action. The
motion, whether granted or denied, will remain in the public record.
5.17 - Emergency Motions. The Court may consider and determine emergency motions at
any time. Counsel should be aware that the designation “emergency” may cause a judge to abandon
other pending matters in order to immediately address the emergency. The Court will sanction any
counsel or party who designates a motion as an emergency under circumstances that are not true
emergencies. It is not an emergency when counsel has delayed discovery until the end of the
discovery period.

SECTION 6 - CASE MANAGEMENT NOTICE, MEETING, REPORT,


CONFERENCE AND ORDER

6.1 - Notice of Hearing and Order on Case Management Conference. Within 30 days of
filing or transfer of a case to Business Court, the Court will issue and serve on Plaintiff’s counsel a
Notice of Hearing and Order on Case Management Conference (the “Notice”). Plaintiff’s counsel
shall immediately thereafter serve a copy of the Notice on all Defendants. Defendants shall
immediately serve a copy of the Notice on all Third Party Defendants.
6.2 - Case Management Meeting. Regardless of the pendency of any undecided motions,
Lead Trial Counsel shall meet no less than 30 days in advance of the Case Management Conference
(“CMC”) and address the following subjects, along with other appropriate topics, including those set
forth in Florida Rule of Civil Procedure 1.200(a), some of which subjects and topics will be
incorporated into a Case Management Order prepared by the Court:
a. Pleadings issues, service of process, venue, joinder of additional parties, theories
of liability, damages claimed and applicable defenses;
b. The identity and number of any motions to dismiss or other preliminary or pre-
discovery motions that have been filed and the time period in which they shall be
filed, briefed and argued;
c. A discovery plan and schedule including the length of the discovery period, the
number of fact and expert depositions to be permitted and, as appropriate, the
length and sequence of such depositions;
d. Anticipated areas of expert testimony, timing for identification of experts,
responses to expert discovery and exchange of expert reports;
e. An estimate of the volume of documents and computerized information likely to be
the subject of discovery from parties and nonparties and whether there are
technological means that may render document discovery more manageable at an
acceptable cost;
f. The advisability of using special master(s) for fact finding, mediation, discovery
disputes or such other matters as the parties may agree upon;
g. The time period after the close of discovery within which post-discovery
dispositive motions shall be filed, briefed and argued and a tentative schedule for
such activities;
h. The possibility of settlement and the timing of Alternative Dispute Resolution,
including the selection of a mediator or arbitrator(s);
i. Whether or not a party desires to use technologically advanced methods of
presentation or court-reporting and, to the extent this is the case, a determination
of the following:
i. Fairness issues, including but not necessarily limited to use of such
capabilities by some but not all parties and by parties whose
resources permit or require variations in the use of such capabilities;
ii. Issues related to compatibility of Court and party facilities and
equipment;
iii. Issues related to the use of demonstrative exhibits and any
balancing of relevance and potential prejudice that may need to
occur in connection with such exhibits;
iv. The feasibility of sharing the technology resources or platforms
amongst all parties so as to minimize disruption at trial; and
v. Such other issues related to the use of the Court’s and parties’
special technological facilities as may be raised by any party, the
Court or the Court’s technological advisor, given the nature of the
case and the resources of the parties.
j. A good faith estimate by each party based upon consultation among the parties of
the costs each party is likely to incur in pursuing the litigation through trial court
adjudication;
k. A preliminary listing of the principal disputed legal and factual issues;
l. A preliminary listing of any legal principle and facts that are not in dispute;
m. A good faith estimate by each party of the length of time to try the case;
n. Whether a demand for jury trial has been made;
o. The track to which the case will be assigned. The Business Court typically
employs the following management tracks: Business Expedited (Target Trial Date
within 13 months of filing of complaint); Business Standard (Target Trial Date
within 18 months of filing of complaint); and Business Complex (Target Trial Date
within two years of filing of complaint).
p. Such other matters as the Court may assign to the parties for their consideration.

6.3 - Joint Case Management Report. No less than ten (10) days in advance of the CMC,
the Parties shall file the Joint Case Management Report addressing the matters described above and
shall provide the Court, but not file with the clerk, a diskette, CD or e-mail attachment containing the
Joint Case Management Report. All counsel and parties are responsible for filing a Joint Case
Management Report in full compliance with these Procedures. Plaintiff’s counsel shall have the
primary responsibility to coordinate the meeting between the parties and the filing of the Joint Case
Management Report. If a non-lawyer plaintiff is proceeding pro se, defense counsel shall coordinate
compliance. If counsel is unable to coordinate such compliance, counsel shall timely notify the Court
by written motion or request for a status conference.
6.4 - Case Management Conference. The attendance by Lead Trial Counsel for all parties is
mandatory. The court will hear the views of counsel on such issues listed in BCP 6.2 above as are
pertinent to the case or on which there are material differences of opinion.
6.5 - Case Management Order. Following the CMC, the Court will issue a Case
Management Order. The provisions of the Case Management Order may not be deviated from
without notice, an opportunity to be heard, a showing of good cause and entry of an order by the
Court.
The Case Management Order may also specify a schedule of status conferences, when
necessary, to assess the functioning of the Case Management Order, assess the progress of the case,
and enter such further revisions to the Case Management Order as the Court may deem necessary or
appropriate.

SECTION 7 – DISCOVERY

7.1 - Presumptive Limits On Discovery Procedures. Presumptively, subject to stipulation


of the parties and order of the Court for good cause shown, each party is limited to propounding fifty
(50) interrogatories (including sub-parts) and fifty (50) requests for admission on each opposing
party. Depositions are presumptively limited to twelve (12) depositions (not including depositions of
testifying experts) taken by the plaintiffs, twelve (12) depositions taken by the defendants, and twelve
(12) depositions taken by the third-party defendants, regardless of the number of separate parties
designated as plaintiffs, defendants, and third-party defendants. The parties may agree by stipulation
on other limits on discovery within the context of the limits and deadlines established by these
Procedures and the Court’s Case Management Order, but the parties may not alter the limitations
provided by these Procedures without leave of Court.
7.2 - Depositions. The Court expects counsel to conduct discovery in good faith and to
cooperate and be courteous in all phases of the discovery process. Depositions shall be conducted in
accordance with the following guidelines:
a. All parties or employees will be made available for deposition on five days notice to
counsel.
b. Counsel shall not direct or request that a witness not answer a question, unless
counsel has objected to the question on the ground that the answer is protected by privilege
or a limitation on evidence directed by the Court.
c. Counsel shall not make objections or statements that might suggest an answer to a
witness. Counsel’s statements when making objections should be succinct, stating the basis of
the objection and nothing more.
d. Counsel and their clients shall not engage in private, off-the-record conferences
during the client’s deposition, except for the purpose of deciding whether to assert a privilege.
e. Deposing counsel shall provide to the witness’s counsel a copy of all documents
shown to the witness during the deposition. The copies shall be provided either before the
deposition begins or contemporaneously with the showing of each document to the witness.
The witness and the witness’s counsel do not have the right to discuss documents privately
before the witness answers questions about the documents.
f. When the deponent or any party demands that the deposition be read and signed,
the failure of the deponent to read and sign the deposition within thirty days from the date the
transcript becomes available to the deponent shall be deemed to ratify the entire deposition.
g. The Court will entertain telephonic hearings regarding issues raised during
depositions then in progress.
7.3 - Special Masters. The Court may, at any time, on its own motion or on the motion of
any party, appoint a special master in any given case pending in Business Court in accordance with
Florida Rule of Civil Procedure 1.490. Unless otherwise ordered, the parties shall bear equally the
cost of proceeding before a special master, and such fees may be taxed as costs.
7.4 - No Filing of Discovery Materials. Depositions and deposition notices, notices of
serving interrogatories, interrogatories, requests for documents, requests for admission, and answers
and responses thereto shall not be filed unless the Court so orders or unless the parties will rely on
such documents in a pretrial proceeding. All discovery materials must be served on other counsel or
parties. The party taking a deposition or obtaining any material through discovery (including through
third party discovery) is responsible for the preservation and delivery of such material to the Court
when needed or ordered in the form specified by the Court.
7.5 - Discovery with Respect to Expert Witnesses. Discovery with respect to experts must
be conducted within the discovery period established by the Case Management Order. In complying
with the obligation to exchange reports relating to experts, the parties shall disclose all opinions to be
expressed and the basis and reasons therefor; the data or other information considered by the witness
in forming the opinions, any exhibits to be used as a summary of or support for the opinions; the
qualifications of the witness, including a list of publications authored by the witness within the
preceding ten years; the compensation to be paid for the study and testimony; and a listing of any
other cases in which the witness has testified as an expert at trial or by deposition or affidavit within
the preceding four years. Each party offering an expert witness shall provide three alternative dates
for the deposition of the expert.
7.6 - Completion of Discovery. The requirement that discovery be completed within a
specified time mandates that adequate provisions must be made for interrogatories and requests for
admission to be answered, for documents to be produced, and for depositions to be held within the
discovery period. The Court does not anticipate entertaining motions relating to discovery conducted
after the close of the discovery period as set forth in the Court’s Case Management Order.
7.7 - Extension of the Discovery Period or Request for Additional Discovery. Motions
seeking an extension of the discovery period or permission to take more discovery than is permitted
under the Case Management Order must be presented prior to the expiration of the time within which
discovery is required to be completed. Such motions must set forth good cause justifying the
additional time or additional discovery and will only be granted upon such a showing of good cause
and that the parties have diligently pursued discovery. The Court will usually only permit additional
depositions upon a showing of exceptionally good cause.
7.8 - Trial Preparation After the Close of Discovery. Ordinarily, the deposition of a
material witness not subject to subpoena should be taken during discovery. However, the deposition
of a material witness who agrees to appear for trial, but later becomes unavailable or refuses to
attend, may be taken at any time prior to or during trial.
7.9 - Confidentiality Agreements. The parties may reach their own agreement regarding the
designation of materials as confidential. There is no need for the Court to endorse the confidentiality
agreement. The Court discourages unnecessary stipulated motions for protective orders. The Court
will enforce signed confidentiality agreements. Each confidentiality agreement shall provide or shall
be deemed to provide that no party shall file documents under seal without having first obtained an
order granting leave of Court to file documents under seal based upon a showing of particularized
need.

SECTION 8 - ALTERNATIVE DISPUTE RESOLUTION


8.1 - Alternative Dispute Resolution Mandatory in All Cases. Alternative Dispute
Resolution (“ADR”) is a valued tool in the resolution of litigated matters. An appropriate mechanism
for ADR shall be discussed by the Court and counsel at the Case Management Conference. The Case
Management Order shall order the parties to a specific ADR process, to be conducted either by a
Court-assigned or an agreed-upon facilitator and shall establish a deadline for its completion.
8.2 - Non-Binding Arbitration. The parties may agree to submit to non-binding arbitration
or it may be ordered upon motion of any party. The rules governing arbitration shall be selected by
the parties or failing agreement, the Court will order use of all or a part of the arbitration rules
common to the Ninth Judicial Circuit, the American Arbitration Association or other available rules.
8.3 - Mediation.
a. Case Summaries - Not less than five business days prior to the mediation
conference, each party shall deliver to the mediator a written summary of the facts and issues
of the case.
b. Identification of Business Representative - As part of the written summary, counsel
for each corporate party shall state the name and general job description of the employee or
agent who will attend and participate with full authority to settle on behalf of the business
entity.
c. Attendance Requirements and Sanctions - Lead Trial Counsel and each party
(including, in the case of a business party, a business representative, and in the case of an
insurance company, the insurance company representative as set forth in Florida Rule of Civil
Procedure 1.720(b)(3)) with full authority to settle shall attend and participate in the
mediation conference. In the case of an insurance company, the term “full authority to settle”
means authority to settle up to the amount of the party’s last demand or the policy limits,
whichever is less, without further consultation. The court will impose sanctions upon Lead
Trial Counsel and parties who do not attend and participate in good faith in the mediation
conference.
d. Authority to Declare Impasse - Participants shall be prepared to spend as much
time as may be necessary to settle the case. No participant may force the early conclusion of
mediation because of travel plans or other engagements. Only the mediator may declare an
impasse or end the mediation.
e. Rate of Compensation - The mediator shall be compensated at an hourly rate
stipulated by the parties in advance of mediation. Upon motion of the prevailing party, the
party’s share may be taxed as costs in this action.
f. Settlement and Report of Mediator - A settlement agreement reached between the
parties shall be reduced to writing and signed by the parties and their attorneys in the presence
of the mediator. Within five business days of the conclusion of the mediation conference, the
mediator shall file and serve a written mediation report stating whether all required parties
were present, whether the case settled, and whether the mediator was forced to declare an
impasse.

SECTION 9 - JOINT FINAL PRETRIAL STATEMENT

9.1 - Meeting and Preparation of Joint Final Pretrial Statement. On or before the date
established in the Case Management Order, Lead Trial Counsel for all parties and any unrepresented
parties shall meet together in person for the purpose of preparing a Joint Final Pretrial Statement that
strictly conforms to the requirements of this section. The case must be fully ready for trial when the
Joint Final Pretrial Statement is filed. Lead Trial Counsel for all parties, or the parties themselves if
unrepresented, shall sign the Joint Final Pretrial Statement. The Court will strike pretrial statements
that are unilateral, incompletely executed, or otherwise incomplete. Inadequate stipulations of fact
and law will be stricken. Sanctions may be imposed for failure to comply with this section, including
the striking of pleadings. At the conclusion of the final pretrial conference, all pleadings are deemed
to merge into the Joint Final Pretrial Statement, which will control the course of the trial.
9.2 - Contents of Joint Final Pretrial Statement.
a. Stipulated Facts. The Parties shall stipulate to as many facts and issues as
possible. To assist the Court, the parties shall make an active and substantial effort to
stipulate at length and in detail as to agreed facts and law, and to limit, narrow and simplify
the issues of fact and law that remain contested.
b. Exhibit List. An exhibit list containing a description of all exhibits to be introduced
at trial and in compliance with the approved form located on the Business Court web site at
http://www.ninja9.org/court/business/index-BC.htm, must be filed with the Joint Final Pretrial
Statement. Each party shall maintain a list of exhibits on disk or CD to allow a final list of
exhibits to be provided to the Clerk of Court at the close of the evidence. Unlisted exhibits
will not be received into evidence at trial, except by order of the Court in the furtherance of
justice. The Joint Final Pretrial Statement must attach each party’s exhibit list on the
approved form listing each specific objection (“all objections reserved” does not suffice) to
each numbered exhibit that remains after full discussion and stipulation. Objections not made
– or not made with specificity – are waived.
c. Witness List. The parties and counsel shall prepare a witness list designating in
good faith which witnesses will likely be called and which witnesses may be called if
necessary. Absent good cause, the Court will not permit testimony from unlisted witnesses at
trial over objection. This restriction does not apply to rebuttal witnesses. Records custodians
may be listed, but will not likely be called at trial, except in the event that authenticity or
foundation is contested. Notwithstanding the Business Court Procedures regarding
videoconferencing, for good cause shown in compelling circumstances the Court may permit
presentation of testimony in open court by contemporaneous transmission from a different
location.
d. Depositions. The Court encourages stipulations of fact to avoid calling
unnecessary witnesses. Where a stipulation will not suffice, the Court permits the use of
videotaped depositions at trial. At the required meeting, counsel and unrepresented parties
shall agree upon and specify in writing in the Joint Final Pretrial Statement the pages and lines
of each deposition (except where used solely for impeachment) to be published to the trier of
fact. The parties shall include in the Joint Final Pretrial Statement a page-and-line description
of any testimony that remains in dispute after an active and substantial effort at resolution,
together with argument and authority for each party’s position. The parties shall prepare for
submission and consideration at the final pretrial conference or trial edited and marked copies
of any depositions or deposition excerpts which are to be offered into evidence, including
edited videotaped depositions. Designation of an entire deposition will not be permitted
except on a showing of necessity.
e. Joint Jury Instructions, Verdict Form. In cases to be tried before a jury, counsel
shall attach to the Joint Final Pretrial Statement a copy and an original set of jointly-proposed
jury instructions, together with a single jointly-proposed jury verdict form. The parties
should be considerate of their juries, and therefore should submit short, concise verdict forms.
The court prefers pattern jury instructions approved by the Supreme Court of Florida. A
party may include at the appropriate place in the single set of jointly-proposed jury
instructions a contested charge, so designated with the name of the requesting party and
bearing at the bottom a citation of authority for its inclusion, together with a summary of the
opposing party’s objection. The parties shall submit a computer diskette or CD containing
the single set of jury instructions and verdict form with the Joint Final Pretrial Statement.
9.3 Coordination of Joint Final Pretrial Statement. All counsel and parties are
responsible for filing a Joint Final Pretrial Statement in full compliance with these Procedures.
Plaintiff’s counsel shall have the primary responsibility to coordinate the meeting of Lead Trial
Counsel and unrepresented parties and the filing of a Joint Final Pretrial Statement and related
material. If a non-lawyer plaintiff is proceeding pro se, then defense counsel shall coordinate
compliance. If counsel is unable to coordinate such compliance, counsel shall timely notify the Court
by written motion or request for a status conference.

SECTION 10 - TRIAL MEMORANDA AND OTHER MATERIALS

10.1 - Trial Memoranda. In the case of a non-jury trial, no later than ten days before the
first day of the trial period for which the trial is scheduled, the parties shall file and serve Trial
Memoranda with proposed findings of fact and conclusions of law, together with a computer diskette
or CD. In the case of a jury trial, no later than ten days before the first day of the trial period for
which the trial is scheduled, the parties may file and serve Trial Memoranda, together with a computer
diskette or CD.

SECTION 11 - FINAL PRETRIAL CONFERENCE

11.1 - Mandatory Attendance. Lead Trial Counsel and local counsel for each party,
together with any unrepresented party, must attend the final pretrial conference in person unless
previously excused by the Court.
11.2 - Substance of Final Pretrial Conference. At the final pretrial conference, all counsel
and parties must be prepared and authorized to address the following matters: the formulation and
simplification of the issues; the elimination of frivolous claims or defenses; admitting facts and
documents to avoid unnecessary proof; stipulating to the authenticity of documents; obtaining
advance rulings from the Court on the admissibility of evidence; settlement and the use of special
procedures to assist in resolving the dispute; disposing of pending motions; establishing a reasonable
limit on the time allowed for presenting evidence and argument; and such other matters as may
facilitate the just, speedy, and inexpensive disposition of the actions.

SECTION 12 - SANCTIONS

12.1 - Grounds. The Court will impose sanctions on any party or attorney: 1) who fails to
attend and to actively participate in the meeting to prepare the Joint Final Pretrial Statement or
refuses to sign or file the Joint Final Pretrial Statement; 2) who fails to attend the final pretrial
conference, or who is substantially unprepared to participate; 3) who fails to attend the mediation and
actively participate in good faith, or who attends the mediation without full authority to negotiate a
settlement, or who is substantially unprepared to participate in the mediation; or 4) who otherwise
fails to comply with the Business Court Procedures. Sanctions may include, without limitation, any,
some or all of the following: an award of reasonable attorneys’ fees and costs, the striking of
pleadings, the entry of default, the dismissal of the case, or a finding of contempt of court.

SECTION 13 – TRIAL

13.1 - Examination of Witnesses. When several attorneys are employed by the same party,
the examination or cross-examination of each witness for such party shall be conducted by one
attorney, but the examining attorney may change with each successive witness or, with leave of the
Court, during a prolonged examination of a single witness. The examination of witnesses is limited to
direct, cross and re-direct. Parties seeking further examination shall request a bench conference to
discuss the reasons therefor, and, upon the articulation of good cause, may be allowed further
examination.
13.2 - Objections. Speaking objections are not permitted. A party interposing an objection
shall state the legal basis for the objection only. No response from the interrogating party will be
permitted unless requested by the Court.

SECTION 14 - COURTROOM DECORUM

14.1 - Communications and Position. Counsel are at all times to conduct themselves with
dignity and propriety. All statements and communications to the Court shall be clearly and audibly
made from a standing position behind the counsel table or the podium. Counsel shall not approach
the bench except upon the permission or request of the Court.
Abusive language, offensive personal references, colloquies between opposing counsel and
disrespectful references to opposing counsel are all strictly prohibited. Witnesses and parties must be
treated with fairness and due consideration.
The examination of witnesses and jurors shall be conducted from behind the podium, except
as otherwise permitted by the Court. Counsel may only approach a witness with the Court’s
permission and for the purpose of presenting, inquiring about, or examining that witness with respect
to an exhibit, document, or diagram.
Except in extraordinary circumstances, and then only with leave of Court and permission of
the witness, all witnesses shall be addressed by honorific and surname (e.g., Mrs. Smith, Reverend
Jones, Dr. Adams), rather than by first names.
14.2 - Professional Demeanor. The conduct of the lawyers before the Court and with other
lawyers should be characterized by consideration, candor and fairness. Counsel shall not knowingly
misrepresent the contents of documents or other exhibits, the testimony of a witness, the language or
argument of opposing counsel or the language of a decision or other authority; nor shall counsel offer
evidence known to be inadmissible. In an argument addressed to the Court, remarks or statements
may not be interjected to improperly influence or mislead the jury.

SECTION 15 – JURIES

15.1 - Jury Instruction Conference. At the close of the evidence (or at such earlier time as
the judge may direct) in every jury trial, the judge shall conduct a conference on instructions with the
parties. Such conference shall be out of the presence of the jury and shall be held for the purpose of
discussing the proposed instructions.
15.2 - Objections to Instructions. The parties shall have an opportunity to request any
additional instructions or to object to any of those instructions proposed by the judge. Any such
requests, objections and rulings of the Court thereon shall be placed on the record.
At the conclusion of the charge and before the jury begins its deliberations (and out of the
hearing, or upon request, out of the presence of the jury), the parties shall be given an opportunity to
object on the record to any portion of the charge as given, or omission therefrom, stating with
particularity the objection and grounds therefor.

SECTION 16 - TRIAL DATES AND FINAL PRETRIAL PREPARATION

16.1 - Trial Date. Trial shall commence on the date established by the Court, normally
through the Case Management Order or amendments thereto, or in such other manner as the Court
shall deem appropriate. The Court will consider a request to continue a trial date only if the request is
signed by both the party and counsel for the party.

SECTION 17 - WEB SITE AND PUBLICATION

17.1 - Web Site. The Business Court shall maintain a site on the World Wide Web for ready
access to members of the bar and public. The web site shall be located at the uniform resource
locator http://www.ninja9.org/court/business/index-BC.htm. The web site will store for ready
retrieval basic information about the Business Court, including but not limited to these Procedures
and the procedure for Complex Business Case designation. In addition, the web site will store, in the
sole discretion of the Business Court Judge:
a. the Court’s docket;
b. papers filed with the Court;
c. motions filed with the Court;
d. briefs filed with the Court; and
e. the opinions of the Court.

Attachment to Administrative Order No. 2004-03


February 2004
HE ELEVENTH JUDICIAL CIRCUIT
MIAMI-DADE COUNTY, FLORIDA

CASE NO. 06-1


(Court Administration)

ADMINISTRATIVE ORDER
NO. 06-40

IN RE: CREATION OF SECTION 40


(“COMPLEX BUSINESS LITIGATION
SECTION”) IN THE GENERAL
JURISDICTION DIVISION OF THE
ELEVENTH JUDICIAL CIRCUIT OF
FLORIDA
_______________________________

WHEREAS, the Circuit and County Courts in Miami-Dade County are organized
into divisions for more efficient case and records management; and

WHEREAS, caseloads in each division are identified by numbered sections to


facilitate the exchange of caseloads when changes of division assignment occur; and

WHEREAS, the Court has carefully studied and considered the creation of a
complex business litigation section, including analyzing the business litigation section
operating in the Ninth Judicial Circuit and similar courts in other jurisdictions throughout
the country and the reports and evaluations of those divisions by legal commentators
and experts and has received input from a cross section of the legal community; and

WHEREAS, the nature and volume of business litigation cases filed in the
General Jurisdiction Division of this Court warrant the creation of another section
designated to handle complex business litigation cases;

NOW, THEREFORE, pursuant to the authority vested in me as Chief Judge of


the Eleventh Judicial Circuit of Florida under Rule 2.050, Florida Rules of Judicial
Administration, it is hereby ORDERED that Section 40 is hereby created and dedicated
as the Complex Business Litigation Section, within the General Jurisdiction Division of
this Court.

It is further ORDERED that the following procedures shall be followed as to the


assignment and reassignment of cases with respect to Section 40:

Section 1. The Clerk of the Court shall assign to Section 40 all newly filed
cases that appear to meet the criteria established in this Administrative Order as
designated on the Civil Cover Sheet by the filing attorney or party; and all cases

−1−
reassigned to the Complex Business Litigation Section by the Administrative Judge (or
designee).

Section 2. Cases Subject to the Complex Business Litigation Section.

The principles set forth below shall guide the parties and the Court in the
assignment and reassignment of cases to the Complex Business Litigation Section.
Notwithstanding anything to the contrary in any prior general Administrative Order of
Court procedure, all jury, non-jury, injunction and class action cases shall be assigned
to the Complex Business Litigation Section, if they are among the following types of
actions:

a) Any of the following where the matter in controversy exceeds the amount
of Seventy-five Thousand Dollars ($75,000.00), exclusive of interest, costs
and attorney’s fees:

i. A breach of contract action, including a claim involving an


employment agreement (except a claim primarily based upon
allegations of discrimination) or a partnership, shareholder, joint
venture or other business arrangement;

ii. An action asserting a business tort, such as a claim for breach of


fiduciary duty, fraud, misrepresentation, unfair competition and the
like;

iii. An action based on a statutory or common law violation where the


breach or violation is alleged to arise out of a business dealing;

iv. An action asserting a claim arising under the U.C.C., including a


claim involving the sale of goods or services by or to a business
enterprise;

v. An action involving the purchase, sale or restructuring of a business


or the purchase or sale of the stock, assets or liabilities of a
business;

vi. An action relating to a surety bond;

vii. An action arising from a franchisee/franchisor relationship and


associated liabilities;

viii. An insurance coverage dispute, bad faith suit, or third party


indemnity action against an insurer arising under a policy issued to
a business, such as a claim arising under a commercial general
liability policy or commercial property policy;

−2−
ix. An action under the Uniform Fraudulent Transfer Act (except
proceedings supplementary in a case assigned to another
Division).

x. An action under the Florida Deceptive and Unfair Trade Practices


Act;

xi. A construction defect case not primarily based upon a claim of


personal injury;

xii. A case that is appropriately transferred to the Complex Business


Litigation Section pursuant to Section 4 below; and

b) Any of the following without regard to the amount in controversy:

i. An action relating to trade secrets or a non-compete agreements;

ii. An action involving the dissolution of a business entity or an


assignment for the benefit of creditors;

iii. An action asserting an intellectual property claim;

iv. An actions involving securities or asserting a claim under a state or


other securities law;

v. An action under a state or other antitrust law;

vi. A shareholder derivative action or other action relating to director


and officer liability or a corporate governance issue.

Section 3. Cases Not Subject to the Complex Business Litigation Section.

The following types of matters shall not be assigned to the Complex Business
Litigation Section absent special circumstances:

a) A matter involving occupational health or safety;

b) An environmental claim which does not involve the sale or disposition of a


business or coverage dispute addressed in paragraph 2(a)(viii) above;

c) A matter in eminent domain;

d) An employment law case, other than the type described in paragraphs


2(a)(i) and 2(b)(i) above;

e) An administrative agency, tax, zoning, or other appeal;

−3−
f) A matter required by statute or other law to be heard in some other Court
or Court Division;

g) A case that is appropriately transferred out of the Complex Business


Litigation Section pursuant to section 4 below.

Section 4. Assignment of Cases in and out of the Business Litigation


Section.

a) Cases filed on or after January 1, 2007 that otherwise meet the criteria for
transfer to the Complex Business Litigation Section shall not be
transferred if a trial date has been set within three months from the date of
this Order.

b) Judges assigned to the General Jurisdiction Division and/or litigants who


have cases filed in the General Jurisdiction Division may submit a request
to the Administrative Judge (or designee) of the General Jurisdiction
Division to assign/transfer a pending case that meets the criteria of the
Complex Business Litigation Section to Section 40.

c). If any party disagrees with the assignment or lack of assignment of a case
to the Complex Business Litigation Section, then that party may submit a
request to the Administrative Judge (or designee) of the General
Jurisdiction Division for re-evaluation and/or case re-assignment.

d). The Administrative Judge of the General Jurisdiction Division (or


designee) shall resolve controversies which may arise concerning the
assignment/transfer of any case to or from the Complex Business
Litigation Section.

This Order shall take effect on January 8, 2007.

DONE AND ORDERED in Chambers at Miami-Dade, Florida this _____ day of


November, 2006.

Joseph P. Farina, Chief Judge


Eleventh Judicial Circuit of Florida

−4−
SUPREME COURT OF GEORGIA

Atlanta June 6, 2007

The Honorable Supreme Court met pursuant to adjournment.

The following order was passed:

It is ordered that the attached revisions to Atlanta Judicial Circuit Rule 1004

governing the Fulton County Superior Court Business Case Division, are hereby

approved:

RULE 1004-AMENDED

BUSINESS CASE DIVISION

1.
The Judges of the Fulton Superior Court hereby create a “Business Case Division” (hereinafter referred

to as the “Division”).

2.
The purpose of the Division is to provide judicial attention and expertise to certain complex Business

Cases.

3.
(a) For purpose of this rule, Business Cases include actions in which the amount in controversy (or, in a

case of injunction relief the value of the relief sought or the cost of not getting the relief) exceeds $1,000,000

and which are brought pursuant to the following:

(i) Georgia Securities Act of 1973, as amended, O.C.G.A. § 10-5-1, et seq.;

(ii) Uniform Commercial Code, O.C.G.A. § 11-1-101, et seq.;


(iii) Georgia Business Corporation Code, O.C.G.A. § 14-2-101, et seq.;

(iv) Uniform Partnership Act, O.C.G.A. § 14-8-1, et seq.;

(v) Uniform Limited Partnership Act, O.C.G.A. § 14-9A-1, et seq.;

(vi) Georgia Revised Uniform Limited Partnership Act, O.C.G.A. § 14-9-100, et seq.;

(vii) Georgia Limited Liability Company Act, O.C.G.A. § 14-11-100, et seq.; and

(viii) any other action that the parties to the action and the Court believes warrants the attention
of the Division, including large contractual and business tort cases as well as other complex
commercial litigation.

(b) Notwithstanding anything contained herein to the contrary, cases that include the following claims

shall not be classified as a Business Case without the consent of all parties:

(i) Personal injury;

(ii) Wrongful death;

(iii) Employment discrimination; and

(iv) Consumer claims in which each individual plaintiff’s claims are in the aggregate less than
$1,000,000.

4.
The Division is to be comprised of up to three Senior Judges who manage, administer, and try the cases

assigned to this Division, or such other number of Senior Judges as the Chief Judge shall designate.

5.
A Business Case filed in the Fulton County Superior Court shall be eligible for assignment to the

Division based upon: (1) the parties' joint request; (2) the motion of a party; or (3) a request submitted by the

Superior Court Judge currently assigned that case, with notice to the parties. The motion or request shall be

directed to the Chief Judge of the Fulton County Superior Court and the Business Case Division Committee to

determine, after allowing the parties twenty (20) days for briefing of the issue, whether the case is a Business

Case Division case and whether it should be accepted for assignment into the Business Case Division. If so

accepted, the Court Administrator shall reassign the case to a Senior Judge within the Business Case Division.
6.
Upon a motion or request, if the Chief Judge, a member of the Business Court Committee and a Senior

Judge to whom the case may be assigned deem the case appropriate for assignment to the Division, the Court

Administrator shall assign the case to the Division. Within the Division, the Court Administrator shall assign

the Division’s cases in rotation, taking into account, reasonably estimated discovery, dispositive motions,

availability of the Senior Judge, the Senior Judge’s current case load, and trial time, as far as practicable. The

Court Administrator shall make every effort to fairly assign the case load within the Division.

7.
When an active Judge’s case has been reassigned to a Division Judge as a Business Case, the Court

Administrator shall make such additional assignments to the active Judge as are necessary to comply with these

rules.

8.
The Chief Judge/District Administrative Judge shall select or re-select all Division Judges from those

Senior Judges, considering their experience, training, and other relevant factors, who volunteer for such

assignment for a period of two years. At the end of each two year term, the Chief Judge/District Administrative

Judge shall decide the continuation of such assignment if the Division Judge volunteers for continued service.

The Chief Judge/District Administrative Judge may reassign such Division Judge at any time in the best

interests of the Court and the Division.

9.
The Business Cases assigned to the Division shall be governed by applicable law, including the Georgia

Civil Practice Act, O.C.G.A. § 9-11-1, et seq., and the Uniform Superior Court Rules.

10.
The Division Judges, in consultation with all parties and pursuant to applicable law, shall have the

ability to modify the schedule for the administration of Business Cases, including the schedule for conducting

discovery, filing dispositive motions, conducting pre-trial procedures, and conducting jury and non-jury trials.

11.
In particular, the Division Judges, pursuant to O.C.G.A § 9-11-5(e) may modify the procedure for filing
papers with the Court, including allowing such filings to be made by facsimile or by e-mail with the Court.

Upon the written consent of all parties and upon any necessary waivers as may be required by law, the Division

Judges may allow for service of papers filed with the Court by electronic means, including by facsimile or by e-

mail. In the event that any procedures are modified pursuant to this paragraph, an electronic signature shall be

deemed an original signature.

12.
The Division Judges, in consultation with all parties, shall have the ability to order nonbinding

mediation, arbitration, or other means of alternative dispute resolution as dictated by the needs of a particular

Business Case. The Division Judges themselves, with the consent of all parties, may conduct such non-binding

mediation, arbitration, or other means of alternative dispute resolution.

13.
The calendar for the Division shall be prepared under the supervision of the Division Judges and shall be

made available to all parties with Business Cases pending in the Division. Pursuant to agreement of the parties

and the Court, the Court may notify parties of such calendar by electronic means, including by facsimile or by e-

mail.

14.
Subject to the rules of evidence, the Division encourages the parties to use electronic presentations and

technologically generated demonstrative evidence to enhance the trier-of-fact’s understanding of the issues

before it and to further the convenience and efficiency of the litigation process.

15.
Within thirty (30) days of a Business Case being assigned to the Division, or such shorter or longer time

as the Division Judges shall order, the parties shall meet with the Division Judge to whom the Business Case is

assigned to discuss the entrance of a case management order, including the following issues: (i) the length of the

discovery period, the number of fact and expert depositions, and the length of such depositions; (ii) a

preliminary deposition schedule; (iii) the identity and number of any motions to dismiss or other preliminary or
pre-discovery motions which shall be filed and the time period in which they shall be filed, briefed, and, if

appropriate, argued; (iv) the time period after the close of discovery within which post-discovery dispositive

motions shall be filed, briefed, and, if appropriate, argued; (v) the need for any alternative form of dispute

resolution; (vi) an estimate of the volume of documents and electronic information likely to be the subject of

discovery from the parties and non-parties, and whether there are means by which to render document discovery

more manageable and less expensive; (vii) and modifications to the rules under the Civil Practice Act or the

Uniform Superior Court Rules as may be applicable to a particular case; (viii) such other matters as the Division

Judge may assign to the parties for their consideration. Within ten (10) days of such a meeting, the parties shall

submit a proposed case management order to the Division Judge for consideration.

16.
In an effort to reduce the length of discovery and quickly resolve any discovery disputes, the Division

Judges shall be available to the parties to resolve disputes that arise during the course of discovery.

17.
In addition to telephone conferencing pursuant to Rule 9 of the Uniform Superior Court Rules, by

mutual agreement between the parties and the Division Judges, counsel may arrange for any hearing or other

conference to be conducted by video conference, subject to the same rules of procedure and decorum as if the

hearing or conference were held in open court. In addition to charging the parties for other costs associated with

Business Cases pending in the Division, the Clerk may charge the parties a fee for such video conferencing or

may include the costs of such video conferencing in any standard fee charged to parties participating in Business

Cases pending in the Division.


Rules For Filing In Business Litigation Session
This document from Hon. Allan van Gestel describes how cases from Essex, Middlesex
or Norfolk counties can be heard in the Business Litigation Session in Suffolk County.
For more information, Judge van Gestel's lobby number is (617) 788-8182.

Hon. Allan van Gestel


Suffolk Superior Court
90 Devonshire St.
Boston, MA 02109

I serve as the presiding justice in the Superior Court Business Litigation Session.
Recently, the venue for cases in the session was expanded so that now parties may, under
certain circumstances, bring cases from Essex, Middlesex or Norfolk counties into the
session in Suffolk County.

Given the number of calls from inquiring attorneys, particularly in the three counties that
are new to the session, there appears to be some degree of confusion about how to get
cases into the session in Boston. For that reason, Judge Margot Botsford and I put
together a memorandum entitled "Procedures for Processing Cases from Esses,
Middlesex and Norfolk to the Business Litigation Session (BLS) in Suffolk County."
(See below.)

The memorandum has been sent to the Clerks' Offices in Essex, Middlesex and Norfolk.
There has not, however, been any kind of explanatory notice to the trial bar. Thus, the
purpose for this letter.

PROCEDURES FOR PROCESSING CASES FROM ESSEX, MIDDLESEX AND


NORFOLK TO THE BUSINESS LITIGATION SESSION (BLS) IN SUFFOLK
COUNTY

Where do the cases from Essex, Middlesex and Norfolk get filed?
Cases can be filed in the county having venue over the case (e.g., Essex, Middlesex or
Norfolk) or in the BLS session in Boston. A plaintiff waives "venue" by filing the case in
Suffolk instead of in the county with the proper venue. If the plaintiff elects to file the
case in Suffolk County, the caption must read "Suffolk" and not one of the other counties.
If filed in Essex/Middlesex/Norfolk, how is the case referred to the BLS session?
A case must be accepted to the BLS by the presiding judge of the BLS who reviews the
case and makes his decision based on criteria originally established for the BLS. At
present, the presiding judge is Judge Allen van Gestel.
Therefore, if a party wants a case from Essex, Middlesex or Norfolk "transferred" to the
BLS session, the party must file a motion with the Court in the county where the case is
pending (e.g., Essex, Middlesex or Norfolk). A judge sitting in that county must consider
the motion and can either "Allow" or "Deny" transfer of the case to the BLS. These
motions should not be forwarded to the BLS in Suffolk.
If the judge in Essex, Middlesex or Norfolk "denies" the motion to transfer the case, then
that is the end of the request for "transfer" to the BLS; the judge's decision cannot be
appealed to the BLS.
If the judge in Essex, Middlesex or Norfolk "allows" the motion, the case will be
reviewed or screened by the presiding judge of the BLS, it does not mean that the case
has been accepted to the BLS.
Since Judge van Gestel currently is the presiding judge of the BLS, the clerk's office
should mail a copy of the complaint and motion to Judge van Gestel in Boston. He will
review the complaint and motion for appropriateness to the BLS and will notify the
clerks' offices and parties of his decision. The copy of the complaint and motion should
be mailed to the Hono rable Allan van Gestel at J.W. McCormack Post Office and
Courthouse, 90 Devonshire St., Room 1509, Boston, MA 02109.
Please note that since the case must first be "accepted" into the BLS, the case is not
considered "transferred" until it is accepted by the presiding judge of the BLS. If the case
is accepted into the BLS, a Suffolk clerk will send an order to the origination court and to
all the parties that the case has been accepted into the BLS. The originating court can
then make the proper entry in the docket that the case has been "transferred" to the
Suffolk BLS. The case will be assigned a new docket number in Suffolk County and it
will become a Suffolk case.
If the case is not accepted into the BLS, a notice to that effect will be sent to the
originating county with an order indicating that acceptance to the BLS was "denied." A
Suffolk clerk will also notify the parties of this decision.
What if the case is filed in Suffolk County and it is not accepted into the BLS?
If the plaintiff chooses to file the case in Suffolk County, it must still be "accepted" into
the BLS. If the case is not accepted, the parties will receive an order from the presiding
judge in the BLS that the case was not accepted and will be dismissed as a Suffolk case
unless within 30 days, a party files a motion to transfer the case to the county having the
proper venue. If the case is transferred, it will be assigned a new docket number in the
county accepting the transfer and it will be assigned to a regular civil time-standards
Session.
What if a defendant objects to the case being filed in Suffolk and chooses not to waive
venue?
If a defendant objects and does not waive venue, the case will be transferred to the county
having proper venue over the case. The case will be assigned a new number and will be
assigned to a regular civil time-standards Session.
What cover sheet should parties use when filing a case in Essex, Middlesex or Norfolk
counties? Parties should use the standard Civil Action Cover Sheet available and used in
all counties when filing a case in Essex, Middlesex or Norfolk counties.
When filing the case in Suffolk County, however, parties must utilize the special BLS
Civil Action Cover Sheet describing why counsel believes the case belongs in the BLS.
Published July 21, 2003
Notice to the Bar

Business Litigation Session

Suffolk Superior Court

The Business Litigation Session of the Suffolk Superior Court (BLS) will
commence operations on Monday, October 2, 2000. Judge Allan van Gestel will
preside and Judge Gordon L. Doerfer will act as a back-up judge. The session
will be held in Court Room 6 on the 15th floor of the John W. McCormack Post
Office and Court House in Boston.

Cases would presumptively qualify as complex commercial cases for the BLS
whether the litigants are individuals or entities, when issues come within, or meet
the qualifications for inclusion in, one or more of the following categories:

• a.claims relating to the governance and conduct of internal affairs of all


business enterprises and not-for-profit institutions, however organized,
including, without limitation, employment agreement disputes; liability of
officers. directors, partners. managers and trustees under statutes and
common laws arising out of the governance and conduct of affairs of the
enterprise or institution;
• b.shareholder derivative claims and claims relating to or arising out of
securities transactions;
• c.claims involving mergers, consolidations, sales of assets, issuance of
debt, equity and other like interests of business enterprises and not-for-
profit institutions;
• d.claims to determine the use or status of. or claims involving, intellectual
property, confidential, proprietary or trade secret information; claims
involving restrictive covenants;
• e.claims involving alleged breaches of contract or fiduciary duties, fraud,
misrepresentation, business torts or other violations involving business
relationships (e.g. unfair competition), if they have complex factual o r legal
issues or are likely to require complex case management;
• f.claims under the Uniform Commercial Code, if the claims involve
complex factual or legal issues or are likely to require complex case
management;
• g.claims arising from transactions with banks, investment bankers and
financial advisers, brokerage firms, mutual and money funds of all kinds, if
the claims involve complex factual or legal issues or are likely to require
complex case management;
• h.claims for alleged violations of antitrust and other restraint of trade laws;
claims of unfair trade practices if the claims involve complex factual or
legal issues or are likely to require complex case management;
• i.malpractice claims brought by business enterprises and not-for-profit
institutions against professionals relating to rendering of professional
services;
• j.claims to which a governmental entity or authority is a party if the claims
are described by any of the above categories and are not excluded from
the Business Litigation Sitting as set out in the next section: and
• k.Other commercial claims, including those involving insurance,
construction, real estate and consumer matters, which have complex
factual or legal issues or are likely to require complex case management.

Cases involving the following would not be eligible for assignment to the BLS
unless (except for cases within clause (a) below) there were issues in a case
where one or more of the other issues qualifies for the BLS:

• (a) matters subject to compulsory arbitration or to the exclusive jurisdiction


of the Probation Land and Housing Courts, the District Courts or the
Boston Municipal Court;
• (b)personal injury survival or wrongful death matters;
• (c)individual (non-class) consumer claims against businesses or insurers,
including product liability and personal injury cases;
• (d)environmental claims not involved in the sale or disposition of a
business;
• (e)eminent domain matters;
• (f)malpractice claims other than those designated above for the BLS;
• (g)employment disputes not involving written contracts and employment
discrimination cases:
• (h) administrative agency review under G.L. c. 30A, § 14. zoning and other
appeals from administrative agency orders;
• (i) residential real estate and non-commercial landlord-tenant disputes;
and
• (j) occupational health or safety matters.
• Cases will be assigned to the BLS under the following procedure:

1) As to cases filed on and after October 2, 2000:


A plaintiff who claims that the case fits one or more of the criteria listed above
should use a special cover sheet which is available at the office of the Clerk for
Civil Business and indicate thereon which criteria apply. The case shall be
thereupon initially assigned to the BLS for review by the presiding justice.
At any time thereafter any party who claims that the case fits one or more criteria
should serve and file a motion under rule 9A in the BLS requesting assignment to
the BLS and state with particularity why the case meets one or more of the
criteria.
The presiding Justice of the BLS will review all cases initially assigned thereto
and all motions requesting such assignment thereafter and determine in his or
her discretion which cases shall continue in the BLS. Any case assigned or
referred to the BLS may, in the discretion of the presiding justice of the BLS be
referred out of the BLS at any time if, in his or her judgment, it is not suitable for
the BLS. Those cases will be then assigned by the clerk's office to one of the
regular time standards sessions.
2). As to cases already pending in the Suffolk Superior Court on October 2,
2000:
Any justice may refer any case which fits one or more of the criteria to the
presiding justice of the BLS for his or her determination whether to accept the
case for assignment to the BLS.
The presiding justice of the BLS may, sua sponte, review any case pending in
any session and assign the case to the BLS if it otherwise meets the criteria for
referral.
3). As to all cases:
No party shall have a right of referral of a pending case to the BLS. A case will
not be assigned to or retained in the BLS unless it meets one or more of the
criteria listed above. Cases on the excluded list will not be assigned to or
retained in the BLS. All decisions to refer to or retain a case in the BLS shall be
at the discretion of the presiding justice of the BLS.
As a case progresses, the presiding justice of the BLS may determine that the
case does not involve complex factual or legal issues, or does not require
complex case management, even though the subject matter of the controversy
otherwise qualifies as a business litigation case. In such cases the presiding
justice of the BLS may return the case to the clerk's office for assignment to a
regular time standards session.
September, 2000
Signed: Chief Justice Suzanne V. DelVecchio
MARYLAND BUSINESS AND TECHNOLOGY COURT
TASK FORCE REPORT

TABLE OF CONTENTS

Page

I. EXECUTIVE SUMMARY .............................................................. 1


II. BACKGROUND ............................................................................... 1
III. HOUSE BILL 15 (Chapter 10 of the Maryland Acts of 2000).......... 2
IV. INPUT FROM THE BUSINESS AND LEGAL COMMUNITIES .. 4
V. EXPERIENCE OF OTHER STATES ............................................... 5
VI. FINDINGS ......................................................................................... 5
VII. EXPEDITED APPEALS ................................................................... 12
VIII. ADR (Alternative Dispute Resolution).............................................. 14
IX. ELECTRONIC FILING..................................................................... 15
X. CONCLUSION.................................................................................. 17

APPENDIX A (Input From The Maryland


Business And Legal Communities) ........................................................ 19
APPENDIX B (Experience Of Other States)................................................. 23
APPENDIX C (List of Members) .................................................................. 26

1316871

i
MARYLAND BUSINESS AND TECHNOLOGY COURT
TASK FORCE REPORT

Created by House Bill 15


Chapter 10 of the Maryland Acts of 2000

Wilbur D. Preston, Jr.


Chairman

Hon. Steven I. Platt


Vice-Chairman

Robert D. Kalinoski Hon. Charles B. Day


Susan M. Souder James I. Keane
Wesley D. Blakeslee Michael Hickman
Ava Lias-Booker Alan R. Duncan
Dr. Nariman Farvardin Christopher R. McCleary
John C. Weiss, III Sen. Leo Green
Sen. Leonard Teitelbaum Hon. John C. Eldridge
Del. Anthony G. Brown Hon. Marielsa A. Bernard
Del. John A. Hurson

Steven E. Tiller
Reporter

Eric G. Orlinsky
Consultant

1
BUSINESS AND TECHNOLOGY PROGRAM
TASK FORCE REPORT

I. EXECUTIVE SUMMARY

This is a report of the Maryland Business and Technology Court Task Force created by
the General Assembly to consider the feasibility of establishing a specialized court
function within Maryland’s Circuit Courts to adjudicate business and technology
disputes. This blue-ribbon task force included appointees from the Maryland Judiciary,
Maryland’s House and Senate, the Maryland State Bar Association and members of the
Maryland business and academic communities.

After hearing from the business community, judges, legislators, lawyers and
representatives of other “business courts,” the Task Force recommends establishing a
statewide program with specially trained judges and mediators to resolve substantial
disputes affecting business entities, including the unique and specialized issues involving
technology. The Task Force considered a separate court division within only certain
counties, but concluded that creating local specialized courts was not needed or desired
by many judges and lawyers, and would unfairly discriminate against business entities
located in other areas of the State.

The Task Force reviewed different models of “business courts” implemented in other
jurisdictions. Recognizing the effectiveness of Maryland’s Differentiated Case
Management (“DCM”) system, the Task Force concluded that a “program” based, in part,
on different models of business courts in other states would best take advantage of the
current DCM system, while providing a unique and specialized forum for handling
business and technology disputes.

Establishing a business and technology dispute management program like the one
detailed in this report provides Maryland with a unique opportunity to substantially
improve its perception among the business and technology communities as a preferred
place to do business. In the competitive national market for business, establishment of
such a program will serve to increase Maryland’s reputation as a place where disputes
involving substantial business interests are effectively and efficiently resolved, thus
increasing Maryland’s reputation as a favorable forum. 1

II. BACKGROUND

Over the past decade, the Internet has grown at a tremendous rate. At the start of the
Clinton administration, there were less than a dozen sites on the worldwide web. This
number currently totals in the hundreds of millions. In light of the significant advances
brought about by not only the Internet, but also the bioscience, aerospace, and
information technology industries, to name only a few, the business environment is
1
Although providing great insight and perspective to the Task Force during its deliberations,
Judge John Eldridge, Senior Judge of Maryland’s Court of Appeals, respectfully abstained from
participating in the recommendations and findings included in this report. Judge Eldridge believes that
given his position as a Judge on the Court of Appeals, and the likely event that the Court of Appeals will be
required to examine the adoption of rules to effect the recommendations contained herein, it is proper for
him to abstain from inclusion in the report.

1
changing at light speed. Business models that couldn’t have even been imagined a few
years ago are now commonplace. These technological advancements have, however,
created interesting dilemmas for all three branches of federal and state government.

In the legislative arena, elected officials must have a keen awareness of the significance
of technological trends, as well as a healthy regard for the limits of their ability to control
them. The executive branch is confronted with a similar dilemma. Regulations may
prove necessary to protect the public and prevent the improper use of technology, while
at the same time, efforts must be made to limit the breadth of such regulations so as not to
chill creative thought.

The role of the judiciary is even more problematic since its role is by design more re-
active than pro-active. Judges will be confronted with new and unique issues never
before seen as a result of emerging technology and new business models. Judicial
decisions will have to look forward to the potential impact of technology, as well as back
to established legal precedent. The Judiciary can nevertheless take a leadership role in the
development of new rules and enhancements in its functions to adapt to these new
challenges. Just as our judicial system created the state wide District Court system and
the nationally regarded DCM system, the pressure to change offers the Judiciary an
opportunity to forge its own adaptive institutions.

Maryland is poised at the forefront of the technological revolution. Already, Maryland


has one of the largest concentration of bioscience and aerospace companies in the
country. Maryland is first in the nation of percentage of technological workers in the
work force and can also claim top honors among states receiving research and
development awards from the National Institutes of Health.

Today, information technology is Maryland’s largest economic impact cluster.


Maryland’s information technology industry added over eighteen thousand new
technology jobs between 1993 and 1998 bringing the total employment attributable to the
information technology industry to well over 100,000. As of 1998, information
technology firms employed 56 of every 1,000 private sector workers in the State, and it is
believed that this number has significantly increased in the last two years. Maryland also
has one of the highest percentage of on-line households in the country with forty-six
percent of Maryland homes connected to the Internet.

Despite these impressive statistics, Maryland is still generally perceived by the business
community as anti-business. Whether accurate or not, such perception is often viewed as
reality. In an effort to change this perception, Maryland’s General Assembly, as part of
an overall plan to encourage technology companies to locate in the State (which includes,
among other things, adoption of the Uniform Computer Information Transactions Act and
the Uniform Electronic Transaction Act), passed House Bill 15 establishing this Task
Force to consider the feasibility of the establishment of a specialized court function to
effectively and efficiently administer business and technology disputes.

III. HOUSE BILL 15 (Chapter 10 of the Maryland Acts of 2000)

The General Assembly expressly stated its intent in passing House Bill 15 as follows:

2
It is the intent of the General Assembly that:

(1) business and technology matters be treated efficiently and effectively in the
judicial system; and

(2) the Chief Judge of the Court of Appeals consider the feasibility of the
establishment of a business and technology court division in Maryland, based on
a study to be completed by the Business and Technology Division Task Force, in
order to enable the circuit courts to handle business and technology matters in the
most coordinated, efficient, and responsive manner, and to afford convenient
access to lawyers and litigants involved in business and technology matters.

In establishing the Task Force, the General Assembly mandated that it solicit input from
both the Maryland business and legal communities, commence a review of the experience
of other states in creating so called business courts, and prepare a report on its findings
and recommendations to the Court of Appeals, the Governor, The Lieutenant Governor,
the President of the Senate, the Speaker of the House of Delegates, the House Judiciary
Committee, the Senate Judicial Proceedings Committee, and the General Assembly. The
General Assembly required this report to include a consideration of all operational
aspects of establishing a business and technology division, including:

(1) the benefits, costs, and potential negative impacts to the State and, in particular,
the Judiciary that are associated with the establishment of a business and
technology division in Maryland;

(2) the costs associated with and essential to the efficient operation of a business and
technology division;

(3) the criteria for determining the type and monetary threshold of matters to be
assigned and procedures for assignment of matters to a business and technology
division;

(4) a case management plan for the prompt and efficient scheduling and disposition
of matters assigned to a business and technology division, which shall identify
those matters that are appropriate for assignment to a specific judge who shall be
responsible for the entire case;

(5) the use of alternative dispute resolution;

(6) the feasibility of establishing an electronic filing system for pleadings and
papers;

(7) the feasibility of establishing an expedited appeals process for matters assigned
to a business and technology division; and

(8) the feasibility of either assigning technology-related criminal matters to a


business and technology division or of establishing some alternative means of
providing particular courts or judges with appropriate, specific training to deal
with technology related criminal matters.

3
IV. INPUT FROM THE BUSINESS AND LEGAL COMMUNITIES

The Task Force heard testimony from a number of business people, judges, lawyers,
legislators and representatives of business courts established in other states including:

(1) Hon. Robert Bell – Chief Judge, Maryland’s Court of Appeals


(2) Hon. Casper Taylor – Speaker of Maryland’s House of Delegates
(3) Hon. Ellen Heller – Administrative Judge, Baltimore City Circuit Court
(4) Hon. Paul Weinstein – Administrative Judge, Montgomery County
Circuit Court
(5) Hon. James Smith – Judge, Baltimore County Circuit Court
(6) Hon. William Chandler – Chancellor, Delaware Court of Chancery
(7) Robert Haig, Esq. – Co-Chairman, New York Commercial Courts Task
Force
(8) William Clark, Esq. – Chairman, Business Law Section of the
Pennsylvania Bar Association and the American Bar Association
Committee on the establishment of Business Courts
(9) James Thompson, Esq. – Past President, Maryland State Bar Association
(10) Gregory Wells, Esq. – Chairman, Litigation Section of the Maryland
State Bar Association
(11) Roger Wolf, Esq. – Chairman, Alternative Dispute Resolution Section of
the Maryland State Bar Association
(12) Richard Lewin – Secretary, Maryland Department of Business and
Economic Development
(13) Philip Singerman – President, Maryland Technology Development
Corporation
(14) David Schwiesow, Esq. – Vice-President and Associate General
Counsel, The Rouse Company
(15) Henry Hopkins, Esq. – Chief Legal Counsel, T. Rowe Price and
Spokesman, Maryland Securities Association
(16) Leonard Moodispaw – President, Essex Corporation

Individual members of the Task Force also polled committees of the Maryland State Bar
Association on which they are members, clients, constituents, and business people on
their thoughts concerning the Task Force’s charge. Also, as the Task Force was
comprised of a diverse cross section of judges, le gislators, lawyers, educators, and
business people, each brought with them unique knowledge and experience to the Task
Force’s deliberations.

Although differences in opinion existed regarding the necessity of a separate business and
technology division,2 as well as the precise model and methodology for its

2
The Task Force heard testimony concerning the need of a specialized business and technology
division, and indeed, engaged in its own spirited debate on the issue. Due to the unavailability of funds to
engage in a thorough study of cases currently pending in the courts, the Task Force was reduced to relying
on the experience of its members in determining the necessity of a specialized court function to hear such
disputes.

It has been the experience of other states that despite initial concerns regarding the necessity of
specialized procedures for the administration of business disputes, once such procedures were
implemented, those concerns proved unfounded. Moreover, with the increasing use of technology in our
society, and Maryland’s efforts to encourage technology businesses to locate in the State, the Task Force

4
implementation, the Task Force determined that there exists a general consensus that if
rules making Maryland’s courts more efficient and effective can be drafted, such rules
should be adopted. This report offers recommendations on the establishment of such
rules concerning the handling of substantive business and technology disputes.3

V. EXPERIENCE OF OTHER STATES

Ten Nine states currently have some form of an operational court function for the
specialized handling of business disputes. With one exception (Wisconsin), jurisdictions
instituting these functions have found that reaction has been enthusiastic. Businesses, as
well as the lawyers handling business litigation, believe that disputes are handled in a
more efficient, effective, and predictable manner. Moreover, the implementation of such
procedures has generally resulted in the increased efficiency of the courts as a whole as
complex business disputes requiring extensive court time are removed from the general
docket allowing judges to concentrate their efforts on other matters.4

It is important to note, however, that none of the states that have created or are
considering business courts have addressed specialization in technology. Just as
Maryland was the first state to put the Uniform Computer Information Transactions Act
into law, it is also the first state to consider a court with a special focus on technology
matters that will use technological tools to administer these disputes more effic iently and
effectively.

VI. FINDINGS

From formal testimony heard by the Task Force, informal polling by its members with
their constituencies in the Bar, the Senate, The House, the State and Federal Judiciary,
and the Maryland business community, and review of the experience of other states, the
Task Force finds as follows:

(1) Both the Maryland business and legal communities desire an efficient,
economical, and hospitable forum for the administration of business and
technology disputes in the circuit courts of our State. The key to this forum is to
assign judges who can handle cases involving complex business and technology
issues competently and in a timely manner regardless of the geographic sites of
the court, the dispute, or even the parties.

(2) The experience of other states that have created business courts initially began
with a perception that such cases were not being handled satisfactorily by the
general jurisdiction courts in those states. These deficiencies gave impetus to the
creation of specialized business courts in those states which have taken various
forms. These specialized courts have significantly improved the efficiency with

assumed that the number of disputes falling within the jurisdiction of the Business and Technology Case
Management Program detailed in this report will only increase.
3
A more detailed description of the testimony heard by the Task Force may be found in Appendix
A.
4
A more detailed description of the experience of other states in adopting special procedures for
the handling of business disputes may be found in Appendix B.

5
which business cases have been disposed of in those states. None of these states,
however, have created technology courts to specialize in the administration of
disputes involving complex technology issues.

(3) None of the states which have created specialized business courts had
implemented a differentiated case management or other system similar to that
already adopted in Maryland. Even the witnesses who testified before the Task
Force from other states acknowledged the significance of Maryland’s DCM
system in which complex cases, including business and technology cases, may be
given increased attention.

(4) Although there is no crisis in the handling of business and technology cases in
the Circuit Courts of this State, there are significant opportunities for
improvement. The substance of that improvement is more important than the
form it might take. Therefore, the benefits that have been documented from the
experience of those states and localities which have instituted “Business Courts,”
“Business Divisions,” or “Business Case Management Programs” were
inventoried by the Task Force without reference to whether a div ision, as such,
was required.

(5) Potential benefits of special procedures for the handling of substantive business
and technology disputes include:

(a) Specialized training and education for those judges with experience in
business and technology issues, as well as the application of specialized
case management techniques and technology for the handling of these
cases.

(b) Greater efficiency resulting from the specialized training and education
of judges, clerks, and staff, as well as the application of the most modern
technology to the filing and processing of these cases.

(c) More timely, rational, legally correct, and perhaps most importantly,
predictable rulings from judges who are better trained and educated in
the relevant subject matter, and comfortable in handling these cases.

(d) A higher rate of settlement of business and technology cases because of


the increased correctness and predictability of an identifiable group of
judges whose competence is certified by the requisite degree of judicial
education and training and whose written opinions are circulated on the
Internet and other available media.

(e) Greater efficiencies in the disposition of other types of cases within the
jurisdiction of the Circuit Courts because of the increased time available
for them as a result of the removal of time consuming business and
technology cases from the general court docket.

The Task Force further finds that the Judiciary of Maryland should forthrightly confront
the fact that the trend toward voluntary professional specialization in western societies is
likely to continue into the twenty-first century. This trend has already irreversibly
manifested itself in the legal profession with the specialization of attorneys and expert

6
witnesses. The Judiciary, however, has, although not entirely,5 declined to join this trend.
The Task Force believes that the inefficiencies and the reductions in the timeliness and
quality of judicial decision-making that will inevitably result from advocates with
specialized knowledge presenting cases to generalist trial judges with neither the
knowledge nor the time to devote to these cases will grow to a level which is intolerable.

The Task Force finds that, for the same reason it was not practical to establish Family
Divisions in all of the circuit courts of this State (i.e., those circuit courts having less than
seven (7) judges), it would not be practical to establish “Business and Technology
Divisions” in those same courts. The Task Force, therefore, concludes that it would not
be possible or practical to establish a “Business and Technology Division” in every
circuit court in this State.

The Task Force believes, however, it would neither be wise nor fair to provide
specialized management of business and technology cases in some jurisdictions, but not
others. This is particularly true since it is the public policy of the Executive and
Legislative branches to encourage high-tech businesses to locate in all parts of the State.
The Task Force, therefore, determines that it is neither necessary nor even the most
efficient organization of judicial resources to establish formal business and technology
circuit court divisions in certain limited jurisdictions in order to, in the words of the
statute, “enable the circuit courts to handle business and technology matters in the most
coordinated, efficient, and responsive manner and to afford convenient access to lawyers
and litigants involved in business and technology matters.”

Instead, the Task Force concludes that all of the benefits of the specialization of judges to
hear business and technology cases previously set forth, as well as a fair and equitable
allocation of judicial resources between different circuits, can be accomplished by the
establishment of a statewide “Business and Technology Case Manage ment Program” in
circuit courts of this State by Maryland Rules of Procedure as follows:

A. Organization

The Chief Judge of the Court of Appeals of Maryland, after consultation


with the various Circuit Administrative Judges, shall initially designate
not less than three (3) judges to the statewide Business and Technology
Case Management Program (the “Program”). The Chief Judge,
consistent with the caseload of the Program, may thereafter adjust the
number of judges assigned to the Program as needed. Pursuant to
Maryland Rule 16-101a.1, the Chief Judge may assign any judge
designated to the Program to sit temporarily in any other circuit court
within the judicial system for the purpose of carrying out the mandate of
the Program.

5
The judiciary has by Rule established “Family Divisions” in certain circuit courts in Maryland,
and by direction of the Chief Judge, ordered that no judge may hear a capital case without first completing
a specialized Judicial Institute education course.

7
B. Assignment of Cases to the Business and Technology Case Management
Program

1. Cases subject to Business and Technology Case Management Program

The Task Force believes that any system for determining whether a case
should be assigned to the Program must be flexible. It is recommended
that the selection system be based upon a format that establishes that
some cases be presumptively included, while others are presumptively
excluded. As the legal and business worlds develop in the face of ever
emerging technology, however, it is contempla ted, and indeed expected,
that such presumptions will be modified by judicial decision and/or rule.

If both parties agree to opt out of the Program, this should be permitted.
In resolving presumptions, consideration should be given to the desire of
both parties.

Assignment to the Program should be reserved for cases where there is a


substantial amount in controversy. This will typically include significant
monetary damages, but may also include consideration of potential future
economic loss in cases where non-monetary relief is the primary relief
being sought (i.e., injunctive or declaratory relief).

The Program should be limited primarily to cases involving business


entities, including individual sole proprietorships or individual partners
where the claim is against the partnership. Individuals, however, should
be permitted to take advantage of the benefits of the Program if involved
in a dispute appropriate for Program designation.

Cases should present commercial and/or technology issues of such a


complex nature that specialized treatment is likely to improve the
expectation of a fair and reasonable resolution of the controversy because
of the need for specialized knowledge or expertise in the subject matter
or familiarity with some specific law or legal principles which may be
applicable.

Thus, the Task Force recommends that notwithstanding anything to the


contrary in any Differentiated Case Management program, cases shall be
assigned to the Business and Technology Case Management Program
based on the following criteria:

a. Only complaints seeking compensatory damages totaling $50,000.00


or more, or complaints seeking primarily injunctive or other
equitable relief, will be considered eligible for assignment to the
Program if the other criteria identified below are met.

b. Actions in which the principal claims involve the following should


presumptively be assigned to the Program.

(i) Disputes arising out of technology development,


maintenance and consulting agreements including software,

8
network and Internet web site development and
maintenance agreements.

(ii) Disputes arising out of the hosting of Internet web sites for
business entities.

(iii) Disputes arising out of technology licensing agreements,


including software and biotechnology licensing agreements
or any agreement involving the licensing of any intellectual
property rights, including patent rights.

(iv) Actions relating to the internal affairs of businesses (i.e.,


corporations, general partnerships, limited liability
partnerships, sole proprietorships, professional associations,
real estate investment trusts, and joint ventures), including
the rights or obligations between or among shareholders,
partners and members or the liability or indemnity of
officers, directors, managers, trustees, or partners.

(v) Actions claiming breach of contract, fraud,


misrepresentation or statutory violations arising out of
business dealings.

(vi) Shareholder derivative and commercial class actions.

(vii) Actions arising out of commercial bank transactions.

(viii) Declaratory judgement and indemnification claims brought


by or against insurers where the subject insurance policy is
a business or commercial policy and where the underlying
dispute would otherwise be assigned to the Program.

(ix) Actions relating to trade secret, non-compete, non-


solicitation, and confidentiality agreements.

(x) Business tort actions, including claims for unfair


competition or violations of Maryland’s Trade Secret or
Unfair and Deceptive Trade Practices Acts.

(xi) Commercial real property disputes other than


landlord/tenant disputes.

(xii) Disputes involving Maryland’s Uniform Computer


Information Transactions Act, including alleged breaches of
the warranty provisions provided in such Act.

(xiii) Professional malpractice claims in connection with the


rendering of professional services to a business entity.

(xiv) Claims arising out of violations of Maryland’s Anti-Trust


Act.

9
(xv) Claims arising out of violations of Maryland’s Securities
Act.

c. Actions in which the principal claims involve the following shall be


presumptively not assigned to the Business and Technology Case
Management Program.

(i) Personal injury, survival or wrongful death matters.

(ii) Medical malpractice matters.

(iii) Landlord/Tenant matters.

(iv) Professional fee disputes.

(v) Professional malpractice claims, other than those


brought in connection with the rendering of professional
services to a business enterprise.

(vi) Employee/employer disputes, other than those relating to


matters otherwise assigned to the Program.

(vii) Administrative agency, tax, zoning and other appeals.

(viii) Criminal matters, including computer-related crimes.6

(ix) Proceedings to enforce judgments of any type.

d. Commencement of an Action

All subject actions shall be commenced as provided by applicable


statutes and the Maryland Rules. In all cases a copy of a Civil Non-
Family Cover Sheet, including any Business and Technology Case
Management Program addendum, shall be served with original
process on the parties. It is recommended that the currently used
Civil Non-Family Cover Sheet be modified to specifically address
cases falling within the jurisdiction of the Program. These
modifications should include designations to be filed by the parties
indicating which presumptively included category or categories the
party believes its case falls within so as to assist the judge assigned
to the matter in determining applicability of the Program to the
dispute.

6
The Task Force does not believe that technology and computer related criminal matters require
assignment to the Program. Although involving new means of committing crime, such matters still involve
fundamental principles of substantive and procedural criminal law that can be adequately resolved by
members of the Judiciary experienced in the handling of such matters.

10
e. Case Management Procedures

1. Authority Over Business and Technology Case Management


Program Status.

Where there is a dispute as to whether the case is properly


assigned to the Program, such dispute will be resolved by the
Administrative Judge of the County in which the case is filed or
the Administrative Judge’s designee as soon as practicable after
the case becomes at issue (i.e., the filing of an answer or other
responsive pleading by the defendant).

2. Tracks within Program

A Business and Technology Case Management Program


Expedited Track shall exist for matters in which the parties
consent and minimal discovery is required. Such an expedited
track shall provide for discovery to be completed and a trial date
scheduled within ninety days of the defendant’s filing of an
answer. Other matters should presumptively be designated
Business and Technology Case Management Program Standard
Track. This standard track should provide for discovery to be
completed and a trial date scheduled within nine months of the
defendant’s filing of an answer. Actions in which preliminary
injunctive relief is sought may be appropriate for either track
depending upon the circumstances.

3. Motion Practice and Discovery Motions

The Program Judge to whom the action is assigned shall hear all
proceedings until the matter is concluded, except under
exceptional circumstances where the Judge may make
arrangements for certain discovery and other pretrial motions to
be heard by one of the other Program Judges.

4. Rules to Show Cause and Emergency Motions and Petitions.

Unless there is a dispute as to Program applicability, show cause


orders and emergency motions and petitions shall be referred to a
Program Judge for immediate disposition. If there is any dispute
regarding Program applicability, that dispute shall be referred to
the Administrative Judge, or the designee of the Administrative
Judge, of the County in which the case is filed for immediate
disposition prior to hearing the emergency motion(s).

5. Publication of Written Opinions

Opinions of the trial court judges designated as Program Judges


shall be published on the Internet in the same manner as the
appellate courts of this State through the Maryland State Bar
Association and the Daily Record. To the extent practical,

11
Program Judges should discuss these opinions with each other in
an attempt to insure consistent decisions.

f. Additional Recommendations

1. The Task Force does not deem it appropriate to attempt to


further specify the rules, regulations, policies, and procedures
under which the recommended enactment of the statewide
Program would operate. The operational rules are best left to
Maryland’s Standing Committee on Rules of Practice and
Procedure to recommend and the Court of Appeals of Maryland
to adopt. The Task Force notes that a number of states (e.g.,
Pennsylvania, North Carolina and Wisconsin) have published
business case management plans and procedures that may
provide a useful framework for the development of rules,
regulations, policies, and procedures for the Program.

2. The Task Force recommends the creation of a committee, either


of the Conference of Circuit Judges or the Judicial Conference,
to further develop and continually oversee the operational details
of the Program, after consultation with and ongoing input from
the appropriate Sections (i.e., Business Law, Litigation, and
Alternative Dispute Resolution) of the Maryland State Bar
Association, as well as the business community.

3. The Task Force recommends that the Judicial Institute of


Maryland, the entity charged with educating judges in Maryland,
in consultation with the Maryland State Bar Association,
MICPEL, and the Universities of Maryland and Baltimore Law
Schools, develop a program for the training and continuing
education of judges, clerks, and staff who will have duties
associated with the Program.

4. The Task Force recommends that the Business and Technology


Case Management Program be prominently displayed on the
Judiciary’s website. The utilization of the Judiciary’s website is
recommended because it would demonstrate the Maryland
Judiciary’s ability to be cutting edge. In addition, it is currently
the research vehicle of choice, particularly for technology
companies, and is the easiest option to update. The Task Force
further recommends that the Program be similarly displayed on
the Maryland Department of Business and Economic
Development web site and linked to other State and legal web
sites.

VII. EXPEDITED APPEALS

House Bill 15 further requires the Task Force to examine, and report on, a number of
other issues relating to the establishment of a Business and Technology Program,
including the establishment of rules regarding expedited appeals, the use of alternative

12
dispute resolution techniques, and the electronic filing of pleadings and other uses of
information technology. As for the establishment of rules regarding expedited appeals,
the Task Force believes that existing rules, statutes and case law provide all of the
authority necessary for expediting appeals to Maryland’s Appellate Courts in important
cases presenting a real need for expedition. Thus, special rules to expedite such appeals
for cases falling within the jurisdiction of the Program are unnecessary.

The principal rule providing for an expedited appeal is Rule 8-207(a). Although Rule 8-
207(a) is limited to the Court of Special Appeals and to situations where all parties agree
upon expedition, there are other rules which authorize both appellate courts to expedite
cases even without the consent of the parties.

For example, Rule 8-206(b), dealing with prehearing conferences in the Court of Special
Appeals, provides the parties and the court a mechanism for agreeing upon “the time or
times for filing the record and briefs, and other pertinent matters.” Rule 8-412, setting
forth the times for transmitting the record, which is applicable to both appellate courts,
provides in subsection (d) that, “[o]n motion or on its own initiative, the appellate court
having jurisdiction of the appeal may shorten . . . the time for transmittal of the record.”
Expedition can also be effected under Rule 8-113(b), which states that the parties may
agree on a "Statement of the Case in Lieu of Entire Record.” If the parties so agree, there
is no need to have the trial court record prepared and transmitted to the appellate court, as
the agreed statement becomes the record on appeal.

Furthermore, Rule 8-521(b) authorizes either appellate court, either on motion or on its
own initiative, to advance a case. There have been numerous instances, involving
important cases which had to be decided promptly where the Court of Appeals has
dispensed with the requirements for record extracts and briefs, has heard the case soon
after the trial court’s decision on the papers filed in the trial court, and has decided the
case shortly after oral argument. In addition to the recent Public Service Commission
electric deregulation case, some examples include Save Our Streets v. Mitchell, 357 Md.
237, 743 A.2d 748 (2000); Stevenson v. Steele , 352 Md. 60, 720 A.2d 1176 (1998);
Blount v. Boston, 351 Md. 360, 718 A.2d 1111 (1998); Hertelendy v. Board of Educ., 344
Md. 676, 690 A.2d 503 (1997); State Election Bd. V. Election Bd. Of Balt., 342 Md. 586,
679 A.2d 96 (1996); Roberts v. Lakin, 340 Md. 147, 665 A.2d 1024 (1995); Maryland
Aggregates v. State , 337 Md. 658, 655 A.2d 886, cert. denied, 514 U.S. 1111, 115 S.Ct.
1965, 131 L.Ed.2d 856 (1995).

In addition to the provisions of the Maryland Rules discussed above, some statutory
provisions can be invoked to assist in expediting appeals. For example, Maryland Code
§ 12-201 of the Courts and Judicial Proceedings Article authorizes the Court of Appeals
to issue a writ of certiorari prior to the decision by the Court of Special Appeals. The
Court of Appeals may do this on petition of any party or on its own initiative. When a
case involves an important issue which is likely to be resolved by the Court of Appeals
eventually, the matter can be expedited by the issuance of a writ of certiorari soon after a
notice of appeal is filed, thereby by-passing the Court of Special Appeals. The above-
cited cases are also examples of this.

For all of these reasons, the Task Force does not believe it is necessary to establish new
rules to expedite appeals of cases handled by a Business and Technology Case
Management Program.

13
VIII. ADR (Alternative Dispute Resolution)

It has been proven in other states that the types of cases that the Task Force believes
should be referred to the Business and Technology Case Management Program are
particularly appropriate for resolution through the use of ADR techniques. In many cases
the parties have worked together and may want to continue their association. Efforts
should be made to build on these relationships rather than dissolving them as so often
happens in the adversarial nature of litigation. Even if placed on an expedited track,
litigation is going to be costly both in dollars and in executive and employee time – time
that could more productively be directed toward running and growing the respective
businesses. Additionally, there is the cost of having this unresolved issue weighing on
the businesses and impairing their ability to move forward.

The currently existing DCM system generally encourages the use of ADR. While
mediation is the process most frequently used, other processes such as non-binding
arbitration and neutral case evaluation (NCE) should be considered in appropriate cases.7
Many of the circuit courts already have in place DCM and ADR coordinators with a
system in place to refer cases to ADR before a list of approved mediators (e.g. Anne
Arundel County, Baltimore County, Baltimore City, Montgomery County, and Prince
George’s County), and a Business and Technology Case Management Program can
simply build on the experience of these jurisdictions in implementing specialized ADR
procedures.

It is recommended that all cases assigned to the Program be referred to ADR. Although
Title XVII (§ 17-103) provides that either party can opt out of an ordered fee for service
ADR process, experience has proven that this is rarely done, especially where business
entities are involved. The earlier in the process ADR is used the greater the chance of
cost savings. However, not all cases are ripe for ADR without some discovery. The
practice of most Maryland Circuit Courts using ADR is to refer the cases to mediation as
soon as the case is at issue with a deadline for when the ADR must be completed. The
parties, their lawyers, and the mediator, arbitrator, or neutral case evaluator then
determine the most appropriate time to use ADR.

Since many of the cases being considered for referral to the Program are currently being
handled by persons already trained as mediators, it will not be necessary to require
additional training with regard to mediation techniques. The Task Force believes,
however, that specialized training for the mediators designated as qualified to handle
cases in the Program must be provided. This would include specialized training in both
business and technology issues.

The ADR referral orders in most circuit courts currently provide that mediators will be
paid $150.00 per hour for civil cases to be divided equally between plaintiffs and
defendants. Some courts have specially assigned individual cases to specific persons and
provided for higher reimbursement by the parties, with their consent. The fee structure
may need to be reviewed as special expertise is being required. The fees should fairly
compensate the ADR provider yet not be too expensive as to deter parties from engaging
in the process.

7
Title XVII of the Maryland Rules, effective January 1, 1999, discusses the processes (§ 17-102)
and the training required for a person to be eligible to be on a court approved referral list (§§ 17-104, 105).
Amendments to these rules are currently before the Court of Appeals.

14
The expanded use of ADR in the Circuit Courts of Maryland has been a great benefit to
reducing costs as well as case backlogs. The Task Force strongly recommends that ADR
be an integral part of any Business and Technology Case Management Program.

IX. ELECTRONIC FILING

The Task Force was also charged with evaluating the feasibility of establishing a system
for the electronic filing, or “e-filing,” of pleadings within a Business and Technology
Case Management Program. In its basic form, e-filing simply allows law firms and
courts to exchange documents electronically. In its more integrated form, it allows law
firms to submit documents, view docket entries and submit filing fees directly into the
court’s workflow processes and systems. In turn, the court can conduct internal business
with electronic routing of documents and activities. Courts can also submit electronic
orders, opinions and administrative messages and actions to law fir ms in electronic
formats.

Generally, law firms that represent businesses have automated practice management
systems and create one hundred percent of their internally-generated documents using
word processing and document management systems. It is now commonplace for
business-oriented law firms to use e-mail extensively to exchange electronic documents
with clients. Indeed, clients are demanding such exchange.

The courts in Maryland have a distinct advantage as they are, for the most part, already
fully automated. The Judicial Information Systems (JIS) and case management systems
in the Circuit Courts of Montgomery and Prince George’s County provide one hundred
percent coverage of all pending cases. The administrative office of the courts, JIS and
county governments also provide microcomputers and word processing capabilities to
every Circuit Court Judge’s chambers throughout the state. A significant number of
Circuit Court Judges have internal e-mail capabilities through courthouse networks, and a
growing number have modem and even network based high-speed Internet connections.

A. Non-Use of E-Mail for e-filing

Except in extremely limited circumstances, neither the courts nor the law firms in
Maryland have used electronic mail for filing or service. This reluctance is well
grounded. In spite of emerging standards for e-mail, there can be significant
incompatibility between mail systems and substantial problems in exchanging documents
created in incompatible word processing formats. Word and WordPerfect documents can
have significant incompatibilities, particularly with paragraph numbering, tables of
citations, and precise recreation of formats, such as headers, footers and footnotes.
Indeed, this Task Force has experienced some problems in the exchange of meeting
agendas and minutes between members.

Once filed it is frequently impossible to maintain public record level control over e-mail
storage and computer directories. Finally, even if a document is “electronically
delivered” by e-mail, the clerk’s office has to post the receipt, create a docket entry and
oftentimes print the document to get it to chambers, file it in permanent storage at the
courthouse and even microfilm or image scan the document for back-up storage systems.

15
B. E-Filing’s Secure and Compatible Formats
E-filing allows law firms to transmit electronic documents to courts and to each other in
compatible formats, complete with an automatically generated docket entry and a
permanent filing retrieval system and audit trail.

Instead of using e-mail, e-filing uses the Internet FTP or File Transfer Protocol to
transmit the document and associated filing data to a neutral but highly secure web site.
The court connects with this web site through a single, secure channel rather than allow
thousands of lawyers to have direct access to the court’s systems. The web site and
underlying databases maintain a highly traceable audit and retrieval trail while the
document is delivered to the court and to counsel designated for service in a format that
eliminates incompatibility between word processing formats

C. E-Filing in Maryland (1995 – 2001)


In 1995 Prince George’s County began one of the earliest successful e-filing pilot
projects. The project was a demonstration initiated by the National Center for State
Courts.

For the last three to four years the Circuit Court for Baltimore City has laid the
foundation for an e-filing system for over 10,000 asbestos cases. Baltimore began its
initial efforts to contract for a first generation e-file system called CLAD (Complex
Litigation Automated Docket) offered by Lexis-Nexis. CLAD has been continuously in
use in the Superior Court of Delaware and other jurisdictions since 1991 for asbestos,
environmental, insurance, and tobacco cases.

D. E-File Costs
One of the prevailing e-filing systems, JusticeLink, involves no direct financial
expenditure for software by the court. The business model for installation, data
conversion, user training, maintenance and user support is built on transmission fees by
the sender and access fees by those other than the receivers of the documents or the court.
JusticeLink charges $0.10 per page with a $2.00 minimum for filing and a $2.00
minimum for service. There is no charge for indefinite storage in a highly secure and
redundant processing facility. Another prevailing system, WestFile, presently
contemplates either a $10 - $15 delivery fee or a prepaid subscription plan, again, with no
charge to the court. These delivery prices are either competitive with current manual
costs for delivery or well below them. Although the law firms and parties financially
support the system, they end up paying less than the same task in a manual system.

Courts and law firms will need to devote time and resources to the installation of certain
software and training. Vendors will need access and some labor effort to examine
equipment, set up the system, address any data conversion issues and coordinate training
efforts. These costs are best absorbed by the larger law firms that traditionally represent
businesses in their legal disputes. This proved true in New York where an e-filing system
was initiated in its business court. Firms appearing before the business court were, in
effect, made to be guinea pigs for establishment of an e-filing system that will soon be
rolled out to the general docket.

There can be indirect costs for a court to upgrade its computers, printers and Internet
connections. If a judge hears a case within the Program in a jurisdiction with insufficient

16
computing equipment or telecommunications facilities, there could be delays and costs
needed to implement the needed upgrades or use a temporary facility with proper
equipment.

E. Feasibility of e-filing for a Business and Technology Court Function

It is both feasible and cost effective for the Business and Technology Case Management
Program to use e-filing. Lawyers and the court can exchange documents and conduct
their work more productively, efficiently and effectively. There is considerable value in
allowing a court devoted to the resolution of disputes between business and technology
companies to use the dominant media by which the litigants and their lawyers create
documents, exchange them and communicate with each other.

Based on experiences in other jurisdictions and the groundwork already in place from the
efforts with the Baltimore asbestos cases, the Task Force has been told that e-filing can
be made operational in less than two months. With relatively minimal costs, the Business
and Technology Case Management Program can start its existence with its own statewide
“virtual” docket and document exchange repository. 8

X. CONCLUSION

The Business and Technology Division Task Force was composed of a diverse cross
section of judges, legislators, educators, lawyers, and business people. We have joined
together in making these recommendations to graft a statewide business and technology

8
In addition to establishing electronic dockets, calendars and e-filing, the Business and
Technology Case Management Program should consider using other technologies to conduct its business.
By taking advantage of different technologies for publishing case data, exchanging information and
electronic conferencing, the Program can improve its own productivity. These tools, which should be
affordable and comply with open standards, include:

1. On-line repositories of evidentiary materials (digital images of documents,


electronic transcripts, computer based and computer generated documents and
other evidence) for use by parties and hearing officers.
2. Multimedia briefs – Business litigators are increasingly using presentation and
desktop publishing software to compose briefs on CD-ROM disks and e-filing
sites. These briefs not only include digital exhibits in the text, but also include
links for references to the record, the case law and even high tech exhibits such
as computer animations and video clips.
3. Double blind bid and offer software allowing parties to post double-blind
settlement offers on a highly secure web-site. The applications analyze the
spread between the bids and allow multiple rounds of bidding.
4. Whiteboards or Netmeeting – This technology uses a live Internet site for parties
simultaneously review an exhibit or even mark-up an issue online. NetMeeting
software comes free with Microsoft Windows while Internet-based services such
as WebEx and PlaceWare allow anyone with a web browser to conduct on-line
meetings by collaborating on documents, screen shows and “whiteboards”
which function like a blackboard in which anyone can draw a diagram that
appears on the screens of every participant’s computer.
5. Video conferencing - This technology can be very effective in settlement
conferences, remote examinations of expert witnesses and on-line court
hearings.

17
court function onto the already successful DCM system in an effort to improve the
efficiency of an outstanding Judicia ry. We do not view these recommendations, as some
have suggested, as a “slippery slope,” leading to the unwarranted proliferation of
specialty courts. Other jurisdictions have found that the establishment of so-called
business courts, divisions or programs have succeeded in administering business disputes
more effectively without leading to such a problem. Indeed, the realities that have guided
our deliberations and driven our recommendations, i.e., the increasing specialization of
the world around us generally, and the legal profession, in particular, have compelled our
conclusion and recommendation that an even better and more specially trained judiciary
is required in order to efficiently serve the citizens of our State in the twenty-first century.

This proposal for a Business and Technology Case Management Program, we believe, is
unique and innovative, and provides Maryland with the opportunity to shed its perception
as having an anti-business atmosphere while not damaging the integrity of the Judiciary.
Indeed, this report has already attracted extensive local and national attention. Having a
court that has special business and technology competence and uses technology to
administer its docket puts Maryland in the forefront of adaptation to the new realities of
the Information Age.

18
APPENDIX A
INPUT FROM THE MARYLAND BUSINESS AND LEGAL COMMUNITIES

Testimony heard by the Task Force from Maryland citizens can be broken into the
following categories: (1) commentary from Maryland businessmen and women; (2)
commentary from various committees and members of the Maryland Bar Association;
and (3) commentary from Maryland’s judiciary.

A. Maryland’s Business Community

Commentary from the Maryland business community has been overwhelmingly


favorable. Maryland has long been looked upon by the business community as having an
anti-business atmosphere. The business people who testified before the Task Force
uniformly agreed that implementation of a business and technology function within the
State Circuit Court System would prove to be a significant step in changing this
perception. Although not one witness testified that the implementation of such a function
will prove to be the deciding factor in whether a business chooses Maryland as its state of
incorporation or principal place of business, the establishment of such a division will
certainly weigh in favor of Maryland being chosen. For example, one witness who
testified before the Task Force testified that the entry of what his organization perceived
to be a misguided and incorrect judgment in another state has led his company to re-
evaluate its holdings and operations in that state. Establishment of a division in the State
Circuit Court System that specializes in business and technology issues would, in the
mind of this witness, greatly reduce the chance of such a judgment being entered here.

The business people who testified before the Task Force all believe that the establishment
of a specialized court function to handle business and technology disputes will provide a
number of benefits to not only the business community, but to the judicial system as a
whole. For instance, businesses will be able to receive quick and efficient decisions from
the court in cases where every day that the case remains undecided costs the parties
significant sums of money. Decisions of such a specialized court, in the eyes of the
business community, will also be more predictable in that decisions will be made by
judges that are educated in business and technology issues. Parties will also be able to
rely on written decisions from the trial court which will not only prove helpful in
litigating disputes, but will also guide corporate officers and directors in making
everyday decisions. Such guidance may actually reduce the number of disputes filed.
The business community believes that the issues raised in cases of these types typically
involve complex issues at every stage, including discovery, and need the focus and
attention of experienced judges. The establishment of a specialized court function would
improve the quality of judicial and business administration and generally improve the
overall business climate.

Finally, the business people who testified before the Task Force focused on their
experiences in other states where specialized divisions for the administration of business
disputes have already been established. Other states, particularly New York, have found
that all parties are benefited by the establishment of a separate division for complex
business cases because of the removal of such cases from the general civil docket
rotation. By removing these cases from the general rotation (which although typically

19
involve a small percentage of the total cases in the system, occupy a disproportionately
large amount of judges’ time), the overall efficiency of the system is greatly increased.
For all of these reasons, the business community seems uniformly in favor of the
establishment of a Business and Technology Case Management Program.

B. Maryland’s Judiciary

Maryland’s judiciary takes a somewhat different view of the establishment of such a


function. Although the judiciary firmly supports the efficient and effective resolution of
all matters pending before it, as well as the establishment of any procedures which can
improve the overall efficiency and effectiveness of the courts, the judiciary questions the
need for a separate division and is concerned that the establishment of a separate
Business and Technology Division will lead to the unwarranted proliferation of other
specialty courts. The judiciary (as well as other groups who question the necessity of the
establishment of a Business and Technology Division) point to the establishment of
Maryland’s DCM program and note that none of the other states which have created
specialized business courts had implemented a similar system prior to creation of its
business courts. This is an important distinction between Maryland and these other states
as there was no evidence presented to the Task Force that there is any substantial problem
in the handling of complex cases in Maryland’s Circuit Court System. Indeed, even the
witnesses from other states that have created business divisions acknowledged the
significance of Maryland’s DCM system in which complex cases, including business and
technology cases, can be given increased attention.

For example, in the Circuit Court for Baltimore City, cases receive a computerized
scheduling order when the case becomes at issue, which sets forth a trial date, a
mandatory settlement conference, and deadlines for completion of pre-trial discovery and
the filing of dispositive motions. Moreover, the Court provides for a customized
scheduling order upon written request by any party. Finally, complicated cases, upon
request of the parties, may be specially assigned to a particular judge so as to reduce the
amount of time necessary to educate the judge hearing the various issues, and hopefully
insuring consistent rulings.

Notwithstanding these concerns, the judiciary is firmly in favor of specialized training


and education in all areas of the law, including business and technology law, as well as
the application of specialized case management techniques and technology for the
handling of these cases. Greater efficiency will result from this specialized training and
education of judges, as well as the application of the most modern state of the art
technology to the filing and processing of these claims. More timely, rational, legally
correct, and predictable rulings will result from the handling of these cases by better
trained and educated judges whose written opinions are made available to the public.

C. Maryland State Bar Association

Lastly, the opinion of the committees and members of the Maryland State Bar
Association, not surprisingly, runs according to the type of law engaged in by the
practitioner. The Business Law and Law Practice Management Sections of the Maryland
State Bar Association are supportive of the establishment of a Business and Technology
Division or Case Ma nagement Program. The Litigation Section, on the other hand, has
expressed opposition to a separate division, instead preferring to address business and
technology litigation with modifications to the existing DCM system.

20
The Business Law Section believes that the establishment of a separate business division
could substantially improve the quality of decisions in business cases, as well as the
efficiency with which Maryland courts decide these cases. By specially assigning
business cases to a particular judge who has interest, experience and specialized
education in business matters, the quality of decisions in such cases will be significantly
improved. Moreover, having one judge assigned to a case to hear and decide all issues
arising in that case could improve judicial efficiency by eliminating the need to
repeatedly educate different judges on the often extensive and complex facts of a
business case.

The Business Law Section also points to the experience of other states wherein the
burdens on the court system have been reduced by removing complex business and
technology cases from the general docket. Experience shows that business litigation is
typically far more complex than other forms of litigation and as a result, business cases
often require the courts to spend a disproportionately large amount of time on a relatively
small number of cases. As a business court could be designed to accommodate these
cases and facilitate their resolution, the overall efficiency of the court system could be
improved. Where complex business cases are given special attention, the experience in
other states has proven that such cases typically resolve more quickly thereby improving
the overall efficiency of the entire court system. Thus, the Business Law Section
contends, a specialized Business and Technology Division would help to process all
Maryland cases, civil and criminal, faster and more efficiently, thus providing
Maryland’s over-crowded dockets some relief.

The Business Law Section further contends that the establishment of a Business and
Technology Division within the State Circuit Court System could increase the number of
business entities incorporated and headquartered in Maryland which improves the State’s
overall economy. The Section believes that the quality of the State’s court system can
have a significant impact on the selection of the state of incorporation of a business
because of the increased likelihood that legal action involving that company will be
brought in that selected state. Having a business and technology court in Maryland may
make incorporation and headquartering of businesses in Maryland more attractive.

The Litigation Section believes that the current DCM program, with some modification,
should be able to handle the concerns relating to complex business and technology cases.
The Litigation Section further believes that the creation of a separate division solely for
business and technology cases may, in a myopic effort to attract more businesses to
Maryland, lead to the view that the State’s judiciary is “pro-business.” Although
certainly attractive to business owners, such a perception (whether real or illusory) could
prove harmful to the public perception of the court system for the administration of
justice, no matter who the parties may be.

The Litigation Section recognizes, however, that technology cases are relatively new to
the judicial system and may require specialized procedures. This Section believes that
the DCM system provides a ready solution of the “problems” brought on by these cases
and could serve to make Maryland more “business friendly” without a misconceived
perception of bias on the part of the judiciary. Towards that end, the Litigation Section
proposes that a track be established within the DCM system that would facilitate the fair,
prompt and efficient disposition of technology and business cases. Further, the Litigation
Section proposes specialized training and education for judges handling these matters and

21
the establishment of a panel of trained mediators who could help resolve technology
cases. The Litigation Section further recommends:

1. Establishment of an Maryland State Bar Association program offering training to


officials in the Maryland Department of Business and Economic Development on
the unique benefits of the Maryland court system in resolving technology and
business disputes.

2. Encouraging the General Assembly to approve increased spending for the courts
to upgrade electronic information and filing systems.

3. Establishment of an Maryland State Bar Association committee to monitor


developments concerning business and technology litigation and make
recommendations for future changes within the court system to keep pace with
this rapidly changing area.

4. Use of the trained mediators to prepare a memorandum of law highlighting


technology issues for the trial court in the event matters are not resolved in
mediation.

The Litigation Section believes that all of these recommendations will effectively address
the issues that arise with complex business and technology cases.

22
APPENDIX B
EXPERIENCE OF OTHER STATES

A state by state survey was conducted by the Task Force to determine the status of
business courts in other states throughout the country. The following is a summary of
this survey:

1. Ten states have operational business courts or tracks – Delaware, Illinois,


Massachusetts, Wisconsin, Nevada, New Jersey, New York, North Carolina,
Pennsylvania and Virginia.9

2. Two states have established complex litigation courts which hear, among other
types of cases, complex business litigation – California and Connecticut.

3. Fourteen states have had some form of discussion about establishing a business
court, with some states creating task forces to study the feasibility – Arizona,
Colorado, Florida, Georgia, Kentucky, Maryland, Michigan, Minnesota,
Mississippi, Missouri, New Hampshire, Ohio, Oklahoma and Texas.10

4. Twenty-four states have no current plans to propose establishment of a business


court.

Of the states that have some sort of specialized court to hear complex business litigation,
Delaware is the best-known, most highly respected, and long-standing. Delaware’s Court
of Chancery has existed for over two hundred years and has traditional equitable
jurisdiction. Its business specialization is not the result of a formal decision to specialize,
but rather the incorporation of a large number of companies in Delaware due to its
favorable corporate statutes, and the equitable nature of so many of the disputes in which
those companies are involved.

The Court of Chancery has five members who each handle approximately two hundred to
two hundred twenty-five cases per year. Each member of the Court is responsible for
overseeing each case assigned to him until resolution. Members typically draft
approximately sixty opinions each year, half of which are published.

The Court’s Chancellor, William Chandler, testified before the Task Force that business
litigation makes up approximately ninety-five percent of the Court’s docket and that the
effectiveness of the Court, as well as its national reputation, is brought on by a thorough
understanding of corporate issues. Members of the Court of Chancery often discuss
complex issues among themselves, and review opinions prior to release to the parties and
the public to insure consistency.

Upon request, cases may be expedited with discovery and trial completed in as little as
three months. Parties may also seek expedited appeals to the Delaware Supreme Court.

9
Wisconsin’s business program, although rarely used, is still operational.
10
As previously set forth, the states that have adopted business courts or are considering adoption
of such a court, only Maryland has proposed a division of its general jurisdiction court that focuses on both
business and technology issues.

23
In New York, the movement toward establishment of a business court began in January
1993, when New York County established four specialized "Commercial Parts" to hear
complex commercial and business cases. Four experienced judges were assigned to staff
this court which led to a thirty-five percent increase in the disposition of business cases in
1993 as compared to 1992.

In January 1995, the Commercial and Federal Litigation Section of the New York State
Bar Association issued a comprehensive report recommending establishment of a formal
commercial court. The Commercial Division began hearing cases on November 6, 1995,
and five New York State Supreme Court judges were assigned to hear exclusively
commercial cases in New York County, with an additional commercial division judge
designated in Monroe County (Rochester).

By the end of 1996, The Chief Administrative Judge in New York County reported that
the business court resulted in a 29% reduction in the average time to dispose of cases
assigned to it. Further, there had been an 85% increase in the number of cases settled
before trial, and a 26% decrease in the volume of pending cases. By 1998, the court
reported a 36% reduction in the average time to dispose of cases, reducing the average
time a case spends on the docket from 648 days to 412. These decreases in the number of
cases on the docket allowed New York County to reassign one of the business court
judges to the general docket as the amount of business cases formerly handled by four
judges could now be handled by three. As a result, one full judge's time became
available to address and dispose of other cases on New York's civil and criminal docket
creating judicial efficiency for all cases, not simply those pending before the business
court.

New York’s Commercial Division has been widely acclaimed by business people
throughout the country as a success. Robert Haig, Co-chair of the Commercial Courts
Task Force in New York and advisor to nine states and five countries on the
establishment of specialized courts to administer business litigation, testified before the
Task Force that establishment of the Commercial Division has had a positive impact on
New York’s economy and that the business community is extremely enthusiastic about its
continued operations.

Equally important, the Commercial Division takes advantage of technological advances


such as Courtroom 2000, which uses computers, display monitors and multimedia
equipment to increase the speed and effectiveness in which attorneys can try their cases.
A digital evidence presentation system allows instant retrieval and quick display of
digitized documents. Real-time court reporting allows parties to view the transcript of
the proceedings as it is being created. Litigants no longer need to rely on notes to cross-
examine, but instead can highlight appropriate passages of testimony for use later. Jurors
are able to follow along because the jury box has been equipped with monitors. All of
these features have served to shorten trials by up to forty percent, create livelier
proceedings, and improve jury retention.

Additionally, the New York County branch of the Commercial Division includes a court-
annexed alternative dispute resolution program, in which parties can obtain the services
of a mediator from a roster of specially trained professionals experienced in commercial
matters. By November 1999, the program had handled close to one thousand cases and
achieved settlements in approximately fifty-eight percent of these cases. The success of

24
the New York County ADR program led to the expansion of the program, with West
Chester County11 becoming the second county to create an ADR program. There are
further plans to expand the program to other counties. Also, the New York County
program itself was expanded to accept smaller commercial cases heard outside the
Commercial Division, usually involving smaller businesses, which are especially
appropriate for cost-effective ADR.

Finally, Philadelphia recently established a business division of its own. This division
went into effect on January 2, 2000 and unlike the New York Commercial Division, only
accepts new filings (no cases pending in the court prior to establishment of the business
division were transferred to the business division).

Like Maryland, opponents of the establishment of a business division questioned whether


there existed a sufficient number of cases to warrant its implementation. This concern
has proven illusory as over three hundred cases have been filed in Philadelphia’s business
division since its creation at the beginning of the year. The division has two judges
dedicated full time to handling cases assigned to it, and opinions are placed on a web site
for distribution to the public.

William Clark, Chairman of the Business Law Section of the Pennsylvania Bar
Association and the American Bar Association Committee on the establishment of
Business Courts, testified before the Task Force that a major concern in establishing
Philadelphia’s business division was that a perception would develop that the judiciary
was pro-business. Mr. Clark testified that although it is too early to conclusively
determine, it does not appear that this concern has proven true.

11
Buoyed by the overwhelmingly positive response in New York County, the Commercial
Division has been expanded and now operates in New York, Monroe, Nassau, West Chester, and
Erie Counties.

25
APPENDIX C

MEMBERS APPOINTED BY THE PRESIDENT OF THE MARYLAND STATE BAR


ASSOCIATION, INC.

Wilbur D. Preston, Jr. is Chairman of the Business and Technology Division Task Force,
appointed as the designee of the President of the Maryland State Bar Association, Inc. (MSBA).
Mr. Preston is Chairman of the law firm of Whiteford, Taylor & Preston L.L.P. with practice
areas in banking, government, municipal law and housing law. He was admitted to the Maryland
Bar in 1948 and is a graduate of Western Maryland College (A.B.) and the University of
Maryland (L.L.B.)

Wesley D. Blakeslee is a member of the Business and Technology Division Task Force,
appointed on the recommendation of the MSBA Special Committee on Technology. Mr.
Blakeslee is Associate General Counsel with Johns Hopkins University. He was admitted to the
Maryland Bar in 1976, and is a graduate of Pennsylvania State University (B.S.) and the
University of Maryland Law School (J.D.)

The Honorable Charles B. Day is a member of the Business and Technology Division Task
Force, appointed on the recommendation of the President of the MSBA to bring a federal
perspective to the panel’s proceedings. Mr. Day is U.S. Magistrate. He was admitted to the
Maryland Bar in 1985, and is a graduate of the University of Maryland (B.A., J.D.)

Alan R. Duncan is a public member of the Business and Technology Division Task Force. Mr.
Duncan is the President and CEO of Dynamic Access Systems, LLC, which was formed from the
merger of Duncan Technologies, LLC, providing technology services to businesses and
government in the planning and management of computer technology and computer security
programs. He is a graduate of Fairmont State College (B.S.) and The Wharton School, University
of Pennsylvania (Information Systems Program).

Nariman Farvardin is a public member of the Business and Technology Division Task Force.
Dr. Farvardin is the Dean of the A. James Clark School of Engineering at the University of
Maryland, College Park (effective August 2000). He is a graduate of Rensselaer Polytechnic
Institute (B.S., magna cum laude, M.D., Ph.D.)

Michael Hickman is a public member of the Business and Technology Division Task Force. Mr.
Hickman is the co-founder of Blue Lobster Software which was acquired by SEGA Software. He
is presently Global Product Manager for General Electric responsible for global exchange
services.

Robert D. Kalinoski is a member of the Business and Technology Division Task Force,
appointed on the recommendation of the MSBA Section of Business Law. Mr. Kalinoski is a
partner at the law firm of Kalinoski & Riordan, P.A. with practice areas in business law,
corporate law, probate and estate planning, contract law, taxation, real estate, intellectual
property, and employment law. He was admitted to the Maryland Bar in 1990, and is a graduate
of Harvard University (A.B., cum laude) and the Boston University School of Law (J.D.)

James I. Keane is a public member of the Business and Technology Division Task Force. Mr.
Keane is the Chief Legal Officer of Data West Corporation (CourtLink/JusticeLink, an Internet
company that permits secure electronic filing of court pleadings in many state courts, and

26
computer access to court dockets at the federal, state and local levels. He was admitted to the
Maryland in 1971, and is a graduate of Marquette University (B.A., magna cum laude), and the
Georgetown University Law Center (J.D.)

Ava E. Lias -Booker is a member of the Business and Technology Division Task Force,
appointed on the recommendation of the MSBA Section of Judicial Administration. Mr. Lias-
Booker is a partner at the law firm of Gordon, Feinblatt, Rothman, Hoffberger & Hollander, LLC
with practice areas in commercial institutions, financial institutions, litigation and banking law.
She was admitted to the Maryland Bar in 1986, and is a graduate of Duke University (B.A.) and
the University of Maryland (J.D.)

Christopher R. McCleary is a public member of the Business and Technology Division Task
Force. Mr. McCleary is the Chairman and CEO of Usinternetworking, Inc., an Application
Service Provider (ASP) outsourcing business applications over the Internet. He is a graduate of
the University of Kentucky (B.S.)

Susan M. Souder is a member of the Business and Technology Division Task Force, appointed
on the recommendation of the MSBA Section of Litigation. Ms. Souder is a sole practitioner
with an emphasis on commercial litigation. She was admitted to the Maryland Bar in 1982, and
is a graduate of the University of Maryland (B.A., cum laude) and Georgetown University (J.D.,
cum laude).

John C. Weiss, III is a public member of the Business and Technology Division Task Force.
Mr. Weiss is the Executive in Residence for Innovation and Entrepreneurship at the University of
Baltimore, Merrick School of Business, and Special Consultant to the Board of Trustees of the
Maryland Venture Capital Trust. He is a graduate of Towson University (B.S.) and Loyola
College (M.B.A.), with graduate certificates from Harvard University and the American Institute
of Banking.

MEMBERS APPOINTED BY THE CHIEF JUDGE OF THE COURT OF APPEALS

The Honorable John C. Eldridge is a judicial appointee to the Business and Technology
Division Task Force. Judge Eldridge has been a member of the Maryland Court of Appeals from
the 5th Appellate Circuit (Anne Arundel, Calvert, Charles & St. Mary’s counties) since 1974. He
was admitted to the Maryland Bar in 1960, and is a graduate of Harvard College (B.A.) and the
University of Maryland School of Law (L.L.B.)

The Honorable Steve I. Platt is a judicial appointee to the Business and Technology Division
Task Force. Judge Platt has been a member of the Prince George’s County Circuit Court since
1990. He was admitted to the Maryland Bar in 1975, and is a graduate of the University of
Virginia (B.A.) and the American University Law School (J.D.)

The Honorable Marielsa A. Bernard is a judicial appointee to the Business and Technology
Division Task Force. Judge Bernard has been a member of the District Court of Maryland,
District 6, Montgomery County since 1998. She was admitted to the Maryland Bar in 1981, and
is a graduate of Loyola College (B.A.) and the Catholic University of America (J.D.)

27
MEMBERS APPOINTED BY THE PRESIDENT OF THE STATE SENATE

The Honorable Leo E. Green is a State Senate appointee to the Business and Technology
Division Task Force. Senator Green was first elected to the State Senate in 1982 and presently is
serving as Vice-Chair of the Senate Judicial Proceedings Committee. He was admitted to the
Maryland Bar in 1963, and is a graduate of Mount St. Mary’s College (B.S.) and the Georgetown
University School of Law (L.L.B., J.D.)

The Honorable Leonard H. Teitelbaum is a State Senate appointee to the Business and
Technology Division Task Force. Senator Teitelbaum was first elected to the State Senate in
1994 and presently is serving on the Senate Finance Committee. He is a graduate of Rensselaer
Polytechnic Institute (B.Mgt.Eng.)

MEMBERS APPOINTED BY THE SPEAKER OF THE HOUSE OF DELEGATES

The Honorable Anthony G. Brown is a House of Delegates appointee to the Business and
Technology Division Task Force. Delegate Brown was elected to the House of Delegates in 1998
and serves on the Economic Matters Committee. He was admitted to the Maryland Bar in 1994,
and is a graduate of Harvard University (A.B.) and the Harvard University Law School (J.D.)

The Honorable John Adams Hurson is a House of Delegates appointee to the Business and
Technology Division Task Force. Delegate Hurson was first elected to the House of Delegates in
1990 and presently is House Majority Leader and serves on the Environmental Matters
Committee. He was admitted to the Maryland Bar in 1979, and is a graduate of Georgetown
University (B.A.) and the Georgetown University Law Center (J.D.)

* * * *

Steven E. Tiller is the Reporter for the Business and Technology Division Task Force. Mr.
Tiller is with the law firm of Whiteford, Taylor & Preston L.L.P. with practice areas in
intellectual property, commercial law, computers and software litigation. He was admitted to the
Maryland Bar in 1992, the United States Patent Office in 1995, and is a graduate of James
Madison University (B.S.) and the University of Kentucky School of Law (J.D.)

* * * *

Eric G. Orlinsky is a consultant to the Business and Technology Division Task Force. Mr.
Orlinsky is with the law firm of Saul Ewing LLP with practice areas in business planning,
mergers, acquisitions and reorganizations. He was admitted to practice law in Maryland in 1992
and is a graduate of Johns Hopkins University (B.A.) and the University of Maryland School of
Law (J.D.)

1305736

28
STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION

)
IN RE Local Rules of Practice )
and Procedure for the North ) ORDER
Carolina Business Court )
)
)

This Court hereby adopts the attached Amended General Rules of Practice and Procedure
for the North Carolina Business Court (“Amended Local Rules”). The Amended Local Rules
will apply to all cases currently pending before or later assigned to the North Carolina Business
Court, including cases assigned to judges of the North Carolina Business Court under both
N.C.G.S. § 7A-45.1 and Rule 2.1 of the General Rules of Practice for the Superior and District
Courts.

SO ORDERED, this the 31st day of July, 2006.

/s/ Ben F. Tennille


Honorable Ben F. Tennille
Chief Special Superior Court Judge
for Complex Business Cases

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The following Local Rules for the North Carolina Business Court were prepared by a committee
of the North Carolina Bar Association. The committee has attempted to anticipate questions and
issues that will inevitably arise with the expanded use of technology in complex cases. The
Rules have been adopted by the Court and are currently in effect.

GENERAL RULES OF PRACTICE AND PROCEDURE


FOR THE NORTH CAROLINA BUSINESS COURT
Adopted March 9, 2000
Revised July 31, 2006

RULE 1 – PHILOSOPHY AND GOALS


1.1 – Citation to Rules
1.2 – Purpose
1.3 – Environment
1.4 – Goals
1.5 – Integration with Other Rules

RULE 2 – DEFINITIONS
2.1 – Electronic Identity
2.2 – Electronic
2.3 – Electronic Agent
2.4 – Electronic Record
2.5 – Electronic Security Procedure
2.6 – Record
2.7 – Document
2.8 – Information
2.9 – Information Processing System
2.10 – Paper

RULE 3 – MANDATORY BUSINESS COURT JURISDICTION


3.1 – Compliance with N.C. Gen. Stat. § 7A-45.1
3.2 – Contents of Notice of Designation
3.3 – Opposition to Notice of Designation
3.4 – Payment of Fee for Cases Assigned to the Business Court

RULE 4 – CASE IDENTIFICATION AND ELECTRONIC IDENTITIES


4.1 – Case Identification Numbers
4.2 – Electronic Identities
4.3 – Recipients of Electronic Identification

RULE 5 – SIGNATURES AND AUTHENTICITY


5.1 – Signatures
5.2 – Stipulations or Other Information Involving Multiple Signatures
5.3 – Original Document

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RULE 6 – ELECTRONIC FILING AND SERVICE
6.1 – Business Court Preference for Electronic Filing
6.2 – Attributes of Acceptable Electronic Filing
6.3 – Certification of Electronically Filed Document
6.4 – Notice of Electronic Filing
6.5 – Substituted Electronic Service
6.6 – Date and Time of Filing
6.7 – Submission of Filing
6.8 – Information not Filed with the Court
6.9 – Informal Communications
6.10 – Additional Time Upon Electronic Service
6.11 – Notice and Entry of Orders, Judgments, and Other Matters
6.12 – Good Faith Efforts with respect to Electronic Communications
6.13 – Determination of Failure and Effect on Due Date
6.14 – Procedure Where Notice of Electronic Filing Not Received
6.15 – Retransmission of Electronic Filing

RULE 7 – FILING AND SERVICE OTHER THAN BY ELECTRONIC MEANS


7.1 – Facsimile Transmission
7.2 – Hand Delivery
7.3 – Mail

RULE 8 – FILINGS WITH THE CLERK OF SUPERIOR COURT


8.1 – Required Filings with the Clerk of Superior Court

RULE 9 – TIME
9.1 – Clarification Concerning Time Calculations
9.2 – Enlargements of Time – Motions
9.3 – Enlargements of Time – No Motion Required

RULE 10 – PROTECTIVE ORDERS FOR INFORMATION DEEMED CONFIDENTIAL


OR PROPRIETARY
10.1 – Protective Order Respecting Proprietary Rights

RULE 11 – SECURITY
11.1 – Confidentiality of Electronic Identity
11.2 – Use of Electronic Identity by Additional Person
11.3 – Compromise of Security

RULE 12 – VIDEOCONFERENCING
12.1 – By Agreement
12.2 – Responsibility for Videoconferencing Facilities
12.3 – Allocation of Videoconferencing Costs
12.4 – Court Reporter

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RULE 13 – UNDERTAKINGS OF PARTIES AND LIMITATION OF COURT
LIABILITY
13.1 – Undertakings
13.2 – No Business Court Liability
13.3 – Viruses

RULE 14 – CALENDARING AND COMMENCEMENT OF ACTIONS


14.1 – Preparation of Calendar
14.2 – Appearances
14.3 – Notification of Settlement

RULE 15 – MOTION PRACTICE


15.1 – All Motions to Be Filed in Business Court
15.2 – Form
15.3 – Content
15.4 – Motions Decided on Papers and Briefs
15.5 – Movant’s Supporting Documents and Briefs
15.6 – Response to Motion and Brief
15.7 – Reply Brief
15.8 – Limitations on Length of Briefs
15.9 – Suggestion of Subsequently Decided Authority
15.10 – Motions Not Requiring Briefs
15.11 – Failure to File and Serve Motion Materials
15.12 – Determination of Discovery Motions Through Oral Argument Without Briefs

RULE 16 – PRESENTATION TECHNOLOGY


16.1 – Generally
16.2 – Foundation
16.3 – Virus Prevention
16.4 – Presentation Formats

RULE 17 – CASE MANAGEMENT MEETINGS, REPORTS, CONFERENCES, AND


ORDERS
17.1 – Case Management Meeting
17.2 – Case Management Report
17.3 – Case Management Conference
17.4 – Case Management Order
17.5 – Effect on Other Rules

RULE 18 – DISCOVERY
18.1 – North Carolina Rules of Civil Procedure Applicable
18.2 – Presumptive Limits on Discovery Procedures
18.3 – Depositions
18.4 – No Filing of Discovery Materials
18.5 – Discovery with Respect to Expert Witnesses
18.6 – Conference of Attorneys with Respect to Motions and Objections Relating

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to Discovery
18.7 – Expedited Resolution of Some Discovery Disputes
18.8 – Completion of Discovery
18.9 – Extension of the Discovery Period or Request for More Discovery
18.10 – Trial Preparation After the Close of Discovery

RULE 19 – MEDIATION
19.1 – Mediation Mandatory in All Cases
19.2 – Approved List of Business Court Mediators

RULE 20 – OPENINGS AND CLOSINGS


20.1 – Opening Statements
20.2 – Closing Argument

RULE 21 – EXAMINATION OF WITNESSES


21.1 – Examination of Witnesses

RULE 22 – COURTROOM DECORUM


22.1 – Communications and Position
22.2 – Professional Demeanor

RULE 23 – JURIES
23.1 – Jury Instruction Conference
23.2 – Objections to Instructions
23.3 – Treatment of Instructions during Jury Deliberations
23.4 – Contacts with Jurors Prohibited
23.5 – Presence of Counsel during Jury Deliberation

RULE 24 – TRIAL DATES AND FINAL PRETRIAL PREPARATION


24.1 – Trial Date
24.2 – Final Pretrial Preparation

RULE 25 – COURT REPORTING CONSIDERATIONS


25.1 – Scheduling of Court Reporters
25.2 – Request for Real-Time Transcription
25.3 – Rough-Draft Transcripts
25.4 – Publication of Transcripts
25.5 - Storage and Retention of Court Reporters’ Notes

RULE 26 – APPELLATE RECORD CONSIDERATIONS


26.1 – Filing of Transcripts
26.2 – Signatures on Appellate Materials

RULE 27 – WEB SITE AND PUBLICATION


27.1 – Web Site
27.2 – Citation to Business Court Opinions

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RULE 1 – PHILOSOPHY AND GOALS
1.1 – Citation to Rules. These rules shall be known and cited as the General Rules of

Practice and Procedure for the North Carolina Business Court. They may also be referred to in

abbreviated form as “BCR” or “Business Court Rules” (e.g., this section may be cited as “BCR

1.1”).

1.2 – Purpose. The Business Court Rules are designed to facilitate the pretrial and trial

of cases by the North Carolina Business Court and any other court(s) with comparable and

compatible technical capabilities and otherwise subject to the North Carolina Rules of Civil

Procedure and the General Rules of Practice for Superior and District Courts. They are intended

to take advantage of computer-assisted methods of information processing and the transmission

of such information by advanced communications equipment: (1) where feasible, (2) where

elected by one or more parties and (3) where approved by the Court. They are not, however,

intended to operate to the exclusion of paper-driven methods of handling litigation, absent prior

agreement.

1.3 – Environment. These rules are designed to accommodate litigation and trial of

cases utilizing electronic methods which include but are not limited to electronic filing, scanning,

storage and reproduction of written material in machine-readable form suitable for transmission

through a variety of communications media, as well as litigation and trial of cases in non-

electronic form dependent upon the physical manipulation of paper writings.

1.4 – Goals. These rules and the equipment and methods they enable are intended to

provide better access to Court information for litigants, counsel, and the public; increase the

efficiency and understanding of Court personnel, counsel, and witnesses; decrease costs for

litigants and others involved in the court system; and facilitate the efficient and effective

{00057666;v1}- 6-
presentation of evidence in the courtroom. Whether applied in an electronic or non-electronic

environment, these rules shall be construed and enforced to avoid technical delay, encourage

civility, permit just and prompt determination of all proceedings and promote the efficient

administration of justice.

1.5 – Integration with Other Rules. These rules are intended to supplement, not

supplant, the North Carolina Rules of Civil Procedure and the General Rules of Practice for

Superior and District Courts. Should any conflict be deemed to exist between the Business Court

Rules and the North Carolina Rules of Civil Procedure or the General Rules of Practice for

Superior and District Courts, the latter Rules shall control.

RULE 2 – DEFINITIONS
2.1 – “Electronic Identity” means the combination of Username and Password issued to

a person by the Court and utilized by that person for the purpose of filing an electronic record.

2.2 – “Electronic” means relating to technology having electrical, digital, magnetic,

wireless, optical, electromagnetic, or similar capabilities.

2.3 – “Electronic Agent” means a computer program or an electronic or other automated

means used independently to initiate an action or respond to electronic records or performances

in whole or in part, without review or action by an individual.

2.4 – “Electronic Record” means a record created, generated, sent, communicated,

received, or stored by electronic means. All electronic records shall be capable of being printed

as paper, or transferred to archival media, without loss of content or material alteration of

appearance.

2.5 – “Electronic Security Procedure” means a procedure employed for the purpose of

verifying that an electronic signature, record, or performance is that of a specific person or for

{00057666;v1}- 7-
detecting changes or errors in the information in an electronic record.

2.6 – “Record” means information that is inscribed on a tangible medium or that is

stored in an electronic or other medium and is retrievable in perceivable form.

2.7 – “Document” means a related and paginated grouping of information items

contained on a record.

2.8 – “Information” means data, text, images, sounds, or codes, manipulated manually

or by computer hardware and software.

2.9 – “Information Processing System” means a system for creating, generating,

sending, receiving, storing, displaying, or processing information on paper or in an electronic

medium.

2.10 – “Paper” means any item subject to filing, service, or another use contemplated by

these Rules.

RULE 3 – MANDATORY BUSINESS COURT JURISDICTION


3.1 – Compliance with N.C. Gen. Stat. § 7A-45.1.

(a) A party shall file a Notice of Designation of an action as a mandatory complex

business case under N.C. Gen. Stat. § 7A-45.4 by using Form 1 appearing at the end of these

Rules. The time period for filing the Notice of Designation is explicitly set forth in

N.C. Gen. Stat. § 7A-45.4. If the time period for filing a Notice of Designation expires with

respect to a party, such party may not proceed under N.C. Gen. Stat. § 7A-45.4, but may seek

assignment of the action to the Business Court under General Rule of Practice 2.1.

(b) In the event that a party amends a pleading under N.C. R. Civ. P. 15 (either by

right or with leave of Court), if the amendment raises a new material issue listed in subsections

(a)(1) through (a)(6) of N.C. Gen. Stat. § 7A-45.4, then a Notice of Designation (with respect to

{00057666;v1}- 8-
the entire action) may be filed with respect to such new material issue within the time periods set

forth in subsection (d) of N.C. Gen. Stat. § 7A-45.4. Such time periods will be calculated and

determined by reference to the amended pleading and all permitted responses thereto. A party

shall refrain from filing a Notice of Designation based on an amended pleading unless the new

material issue presented by the amended pleading substantially alters the nature of the action and

other considerations support assignment of the case to the Business Court. The Notice of

Designation procedure shall not be utilized in connection with an amended pleading for the

purpose of interfering with or delaying ongoing or upcoming proceedings, or where assignment

of the action to Business Court would be inconsistent with the interests of justice given the status

of the proceedings in the Superior Court where the action is pending.

(c) Service of a party’s Notice of Designation upon the Special Superior Court Judge

for Complex Business Cases who is then the Chief Business Court Judge as required by

N.C. Gen. Stat. 7A-45.4(b) shall be effected in the same manner (i.e., by e-mail or facsimile

transmission) in which the party sends the Notice of Designation to the Chief Justice of the

Supreme Court.

3.2 – Contents of Notice of Designation. N.C. Gen. Stat. 7A-45.4 provides an expedited

method for certain types of actions to be assigned to the Business Court. In setting forth the

categories of cases within the “mandatory” jurisdiction of the Business Court, the General

Assembly afforded the Court flexibility to determine (on its own motion or the motion of a party)

that the action should not be retained as a Business Court case. In order to allow the Court to

make such a determination on its own motion, Form 1 requires that the party filing the Notice of

Designation explain why and how the action falls within one of the specific categories set forth

in N.C. Gen. Stat. § 7A-45.4(a) and invites that party to supply any additional information that

{00057666;v1}- 9-
may be helpful in determining whether the Court should retain the action. When completing

Form 1, the party should briefly and succinctly explain the nature of the dispute and the material

issues likely to be presented in the action (including any material issues not listed in

N.C. Gen. Stat. § 7A-45.4(a)). In addition, the party should identify for the Court any other

factors that may assist the Court in deciding whether to retain the case, including but not limited

to (i) the amount in issue, (ii) the novelty of the issues, (iii) the degree to which the interests of

justice will be advanced by adjudication of the action under the Business Court’s rules and

procedures, and (iv) any other potential impacts on the parties or the Court that would be

associated with retention of the action.

3.3 – Opposition to Notice of Designation. N.C. Gen. Stat. 7A-45.4(e) provides that a

party may file an opposition to the Notice of Designation. In the event that a party files such an

opposition, all other parties to the action shall be entitled to file responses supporting or opposing

retention of the action in the Business Court. Such responses shall be filed within fifteen days of

service of the opposition or in such shorter time as the Court may direct.

3.4 – Payment of Fee for Cases Assigned to the Business Court. The fee for cases

assigned to the Business Court shall be paid to the Clerk of Superior Court in the judicial district

in which the matter is pending and is due immediately upon receipt of an Order assigning the

case to the Business Court. This fee is non-refundable in the event an Order is subsequently

entered remanding the case to the Superior Court in the County in which the case was originally

filed.

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RULE 4 – CASE IDENTIFICATION AND ELECTRONIC IDENTITIES
4.1 – Case Identification Numbers. On designation or assignment of any case to the

Business Court, the matter shall retain the civil action number assigned to it by the clerk in the

county in which the action originated.

4.2 – Electronic Identities. Upon application of any person having a matter before the

Business Court, the Court shall issue an Electronic Identity to such person which shall be used in

connection with, and shall authorize, the electronic filing of information by such person in the

Business Court. Electronic Identities are not case specific. The issuance of an Electronic

Identity without utilization shall not constitute an appearance in any matter. The utilization of an

Electronic Identity in connection with any electronic filing in the Business Court shall constitute

(a) the agreement of the person to whom the Electronic Identity has been issued that such person

shall use the Electronic Identity in compliance with the rules and procedures of the Business

Court for electronic filing and all other rules applicable to the Business Court and (b) an

appearance in the matter in which the filing is made of the person to whom the Electronic

Identity is issued.

4.3 – Recipients of Electronic Identification. Each person to whom an Electronic

Identity is issued (the “Recipient”) shall be responsible for the security and use of such

Electronic Identity. Any electronic filing made utilizing an Electronic Identity shall be deemed

to be made with the authorization of the Recipient, unless and until the contrary is demonstrated

by the Recipient to the satisfaction of the Court by clear and convincing evidence.

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RULE 5 – SIGNATURES AND AUTHENTICITY
5.1 – Signatures. Information filed with the Court electronically shall be deemed to be

signed by a person (the “Signatory”), regardless of the existence of a handwritten signature on

the paper, provided that such paper is filed by the Signatory using an Electronic Identity, and that

the paper contains the name, postal address, e-mail address and State Bar number (if applicable)

of the Signatory and the typed signature of the person preceded by the symbol “/s/” in the

location at which a handwritten signature would normally appear if filed in paper form. Unless

required by the circumstances, information filed electronically need not and should not be filed

in an optically scanned format displaying an actual signature.

5.2 – Stipulations or Other Information Involving Multiple Signatures. In the case of

a stipulation or other information to be signed by two or more persons representing different

parties, the person who files such information shall confirm that all persons due to sign the

information are agreeable to the content of the document, shall represent to the Court in the body

of the information or in an accompanying filing that such agreement has been obtained, and shall

insert the typed signature of persons other than the person filing preceded by the symbol “/s/”

and followed by the words “by permission” in the location where such handwritten signature

would otherwise appear. Thus, the correct format for the typed signature of a person other than

the person filing is: “/s/ Jane Doe by permission.”

5.3 – Original Document. Information filed electronically in accordance with these

Rules as it resides in the Court’s computer system, and true and accurate printouts of such

information, shall be considered authentic. To the extent that the original of a document is not

required by these Rules to be filed in the office of the Clerk of Superior Court in the judicial

district in which the matter is pending, the Court may require the party to produce that original

{00057666;v1}- 12 -
document, document attachment, or exhibit, even though a copy of it has already been filed

electronically. A screen display or paper printout of an electronic filing is equivalent to the

electronic original for purposes of the Best Evidence Rule, if the display or printout is at a degree

of optical resolution equal to the resolution at which the document is stored in the records of the

Court.

RULE 6 – ELECTRONIC FILING AND SERVICE


6.1 – Business Court Preference for Electronic Filing. For all papers filed with the

Business Court, the parties are strongly encouraged to use the Business Court’s Electronic filing

and service system to effect transmittal and filing of those papers and to serve them on all

parties. However, except as provided in a Case Management Order, nothing in these Rules shall

require the filing of any information in the Business Court by electronic means.

6.2 – Attributes of Acceptable Electronic Filing. Electronic filing may be conducted

only through authorized use of a valid Electronic Identity in accordance with these Rules. All

electronic filings shall be made using only those file formats approved by the Court, and the

format for each electronic filing shall be designated by using a generally recognized file

extension that identifies a particular format. The manipulation of any file or the use of any

technique or format for the purpose of impairing access or display of any file is strictly

prohibited.

6.3 – Certification of Electronically Filed Document. For the purposes of Rule 11 of

the North Carolina Rules of Civil Procedure and these Business Court Rules, any electronically

filed information shall be deemed signed by one or more counsel of record or unrepresented

parties (each, a “Signatory”) pursuant to Rule 5 of these Rules.

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6.4 – Notice of Electronic Filing. Electronic transmission of a paper to the Business

Court file server in accordance with these Rules, together with the receipt of a Notice of

Electronic Filing automatically generated by the Electronic filing and service system as

authorized by the Court, shall constitute filing of the paper with the Business Court for purposes

of timing under the North Carolina General Statutes, the North Carolina Rules of Civil

Procedure, and the Business Court Rules, and shall constitute entry of that paper on the Business

Court Docket. An electronic filing with the Business Court is deemed complete only upon

receipt of such Notice of Electronic Filing by the person filing the paper.

6.5 – Substituted Electronic Service. Service of pleadings and other communications

with the Court shall be governed by Rules 6, 7, and the Case Management Order. Until an order

regarding service of written papers is entered by the Court, and in the absence of a written

stipulation, the parties shall serve documents upon each other in compliance with N.C. R. Civ. P.

5. Where a Business Court order calls for use of Electronic Filing in a matter, receipt by e-mail

of a Notice of Electronic Filing at the e-mail address specified in the Case Management Order

shall constitute an adequate and timely substitute for service pursuant to the North Carolina

Rules of Civil Procedure. Each person who may be served by e-mail shall be responsible for the

timely monitoring of receipt of e-mail messages, the proper operation of the person’s e-mail

service and the prompt notification of the Court and all other persons involved in a matter of any

change in e-mail address.

6.6 – Date and Time of Filing. When information has been filed electronically, the

official information of record is the electronic recording of the information as stored on the

Court’s file server, and the filing date and time is deemed to be the date and time recorded on the

Court’s file server for transmission of the Notice of Electronic Filing, which date and time is

{00057666;v1}- 14 -
stated in the body of such Notice. In the event that information is timely filed, the date and time

of the electronic filing shall govern the creation or performance of any further right, duty, act, or

event required or permitted under North Carolina law or applicable rule, unless the Court rules

that the enforcement of such priority on a particular occasion would result in manifest injustice.

6.7 – Submission of Filing. An electronic filing may be submitted to the Court at any

time of the day or night. For purposes of determining the timeliness of a filing, if the submission

of the filing began during normal business hours of the Business Court (8:00 a.m. – 5:00 p.m.,

Monday through Friday, excluding holidays), the filing is deemed to have occurred on that date.

If the submission of the filing began after normal business hours of the Business Court, the filing

is deemed to have occurred on the next day the Business Court is open for business.

6.8 Information not Filed with the Court. The parties may choose to electronically

serve information that is not filed with the court (e.g., discovery).

(a) Service. All information that is served electronically, but not filed electronically

in the Business Court, shall be served on all persons or entities required to be served in the

manner designated in the Case Management Order. Service by e-mail shall be deemed satisfied

by transmitting the information by e-mail in a format approved by the Court or agreed upon by

the parties.

(b) Time service occurs. Service of an electronically transmitted document shall be

deemed to occur one hour after it is sent, provided that (i) documents sent after 5 p.m. shall be

deemed sent at 8 a.m. the following day; and (ii) documents sent by electronic means that are not

in a format in which the content is readily accessible to the recipient shall not be deemed served

until actually received in a form in which the content is readily accessible to the receiving party.

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6.9 – Informal Communications. All communications with the Court that are not filed

in the Business Court Electronic filing and service system (e.g., letters to the Court) shall be

simultaneously sent to all other parties in the case via e-mail (and if a party cannot receive e-

mail, by the most reasonably expedient method available to the sending party (facsimile

transmission, hand delivery, or mail)). The transmitting party shall promptly notify the Court if

the party is unable to comply with this rule.

6.10 – Additional Time Upon Electronic Service. Electronic service shall be treated

the same as service by mail for the purpose of adding three (3) days to the prescribed period to

respond under N.C. R. Civ. P. 6(e).

6.11 – Notice and Entry of Orders, Judgments, and Other Matters. The Court shall

file electronically all orders, decrees, judgments, and proceedings of the Court, and all other

docket matters, which shall constitute entry of the order, decree, judgment, or proceeding on the

Court’s Docket, pursuant to applicable law and procedure. Each order shall bear a date and a

typed signature of the Business Court Judge issuing the order. Immediately upon the entry of

such matter on the Docket, the Court shall transmit to each e-mail address of record a notice of

the entry. Transmission of such Notice of Entry shall constitute service pursuant to

N.C. R. Civ. P. 58. The Business Court shall be responsible for filing copies of its orders with

the Clerk of Superior Court in the judicial district in which the matter is pending.

6.12 – Good Faith Efforts with respect to Electronic Communications. The parties

shall make all reasonable endeavors in good faith to resolve technical incompatibilities or other

obstacles to electronic communications, provided that no purchase of hardware or software shall

be required and no extensive “manual” reformatting of documents shall be expected. Parties

shall, for example, attempt to identify and correct problems which render content of

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communications inaccessible and shall save or transmit documents in electronic formats that are

mutually available to all parties receiving them. It shall not be consistent with the rules for a

party to object to use of electronic communications and fail to cooperate in resolving a problem

upon which the objection is based. In the event that a party asserts that it did not receive an e-

mail communication or could not fully access its contents, the sending party shall promptly

forward the communication to the party by other means, notify the Court that the information has

been sent by other means and make reasonable efforts to assure that the receiving party obtains

and is able to access the communication at issue and subsequent communications. No party shall

encrypt the contents of a message or change the electronic format in a manner which prevents a

party from having access to all information made available to the Court.

6.13 – Determination of Failure and Effect on Due Date. The Court shall deem the

Electronic filing and service system to be subject to a technical failure on a given day if the

Court server is unable to receive and accept filings in accordance with these Rules, either

continuously or intermittently over the course of any period of time that, after 12:00 noon on

such day, amounts in the aggregate to more than one hour. In the event of a technical failure,

filings due that day which were not filed due solely to such technical failures shall become due

the next business day. Such delayed filings shall be rejected unless accompanied by a

declaration or affidavit attesting to the filing person’s failed attempts to file electronically at least

two times after 12:00 noon separated by at least one hour on each day of delay due to such

technical failure.

6.14 – Procedure Where Notice of Electronic Filing Not Received. If a Notice of

Electronic Filing is not received from the Court in response to a transmission of information for

filing, the information will not be deemed filed. The person making the filing shall attempt to re-

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file the information electronically until such a Notice is received, consistent with the provisions

of subparagraph 6.13 permitting delayed filings. Each person using the Electronic filing and

service system is solely responsible for the proper operation of all equipment and facilities used

to transmit an electronic filing.

6.15 – Retransmission of Electronic Filing. If, after filing information electronically,

any party discovers that the version of the information available for viewing through the

Electronic filing and service system is incomplete, garbled, or otherwise does not conform to the

information as transmitted when filed, such party shall notify the Court immediately and

retransmit the filing if necessary.

RULE 7 – FILING OTHER THAN BY ELECTRONIC MEANS

When a party is unable to use the Business Court’s electronic filing and service system,

any information required or permitted to be filed with the Business Court may be filed by

facsimile transmission, by hand delivery, or by delivery through the United States Mail.

7.1 – Facsimile Transmission. The Business Court may maintain one or more facsimile

machines for the purpose of receiving filings and communications from parties. Numbers for

such facsimile machines shall be posted on the Business Court web site. Except as provided in a

Case Management Order, any information required or permitted to be filed by facsimile shall be

transmitted to the facsimile machine for the Business Court Judge to whom a case has been

assigned located at the Business Court of the assigned Judge. In the absence of an assigned

Business Court Judge, facsimile transmissions shall be directed to the facsimile machine of the

Chief Business Court Judge. The date and time recorded for completion of such facsimile

transmission by the Business Court facsimile system shall establish the time of delivery to the

Business Court. Any person or entity submitting a filing by such facsimile method shall assume

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all risk of error, malfunction, misdirection, or other error that causes a failure in transmission or

otherwise prevents receipt by the Court of a complete and accurate filing. In the event of a filing

by facsimile, the filing party shall use its best efforts to serve the document on all parties by the

means most reasonably calculated to insure receipt of the document by all parties the same day.

If unable to serve by facsimile after diligent efforts, the filing party may serve by hand delivery

or overnight courier for receipt the next business day if within the state, and by the day following

the next business day if outside the state. The Court may receive a facsimile transmission into a

computer file, rather than receiving such a transfer onto paper, and shall image such facsimile

transmission for further system use.

7.2 – Hand Delivery. Except as provided in a Case Management Order, documents may

be filed with the Business Court by hand delivery to the Business Court at the chambers of the

Business Court Judge assigned to a case or, in the absence of an assignment, to the chambers of

the Chief Business Court Judge. Filing by hand delivery shall be deemed complete only upon

actual receipt by authorized Business Court personnel of a document.

7.3 – Mail. Except as provided in a Case Management Order, documents may be filed

with the Business Court by U.S. Mail but such a filing shall be deemed complete only when

actually received by the Business Court. The Court will maintain mailing addresses on its web

site. In cases assigned to a particular Business Court Judge, mail shall be directed to the Judge’s

chambers. In the absence of an assignment, mail shall be directed to the chambers of the Chief

Business Court Judge.

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RULE 8 – FILINGS WITH THE CLERK OF SUPERIOR COURT
8.1 – Required Filings with the Clerk of Superior Court. In accordance with the

provisions of N.C. R. Civ. P. 5(d), all documents and materials submitted to the Business Court

shall also be filed within five (5) business days with the Clerk of Superior Court in the judicial

district in which the matter is pending. Where such documents and materials have been

electronically filed with the Business Court, the certificate of service for filings with the Clerk of

Superior Court shall additionally be signed in handwriting above or in lieu of the electronic

signature line.

RULE 9 – TIME
9.1 – Clarification Concerning Time Calculations. In the event that the time

prescribed for taking any action by any statute, rule of procedure, or any order of the Court is

less than seven days, then even if the additional day allowed as a result of service by

telefacsimile after 5:00 pm (or the equivalent service by electronic filing or email under these

Rules) or the additional three days for electronic service or service by mail extends the time

prescribed to seven days or more, intermediate Saturdays, Sundays, and holidays shall

nevertheless be excluded in calculation of time (in the manner specified in N.C. R. Civ. P. 6(a)).

In such event, if time is enlarged further pursuant to Rules 9.2 or 9.3, then intermediate

Saturdays, Sundays, and holidays shall be included in calculating time only with respect to the

period of the enlargement.

9.2 – Enlargements of Time – Motions. Once a case has been assigned or designated to

the Business Court, all motions to extend any of the times prescribed or allowed by these Rules,

the North Carolina Rules of Civil Procedure, or by court order, shall be directed to the Business

Court Judge assigned to the case. If the case has not yet been assigned to a particular judge, the

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motion to extend time shall be directed to the Chief Business Court Judge. The motion for

extension of time shall not be considered to have been made until it is received by the Business

Court. After assignment or designation to the Business Court, a party shall not seek an order to

extend time from the Clerk of Superior Court in the judicial district in which the matter is

pending, notwithstanding the party’s obligation to file a hard copy of such material with said

Clerk of Superior Court.

The movant shall have a good faith basis for requesting any such extension of time and,

except in extraordinary cases, the movant shall first consult with any opposing party and reflect

that party’s position in the motion and indicate whether the opposing party wishes to be heard on

the motion. Provided that there is such a good faith basis, the filing of the motion for extension

of time shall automatically extend the time for filing or the performance of the act for which the

extension is sought until the earlier of the expiration of the extension requested, ten calendar

days, or a ruling by the court. In the event that the motion for extension of time is denied, the

filing shall be made or the act done no later than the second business day following filing of the

court’s order unless a different time is provided by the court’s order.

9.3 – Enlargements of Time – No Motion Required. With the exception of papers for

which time cannot be enlarged (as explicitly provided in N.C. R. Civ. P. 6(b) or in other court

rules or statutes), if a statute, any rule of procedure, or any order of the Court requires that a

paper be filed or served less than twenty days after the Chief Justice designates an action as a

complex business case under General Rule of Practice 2.1 and/or N.C. Gen. Stat. § 7A-45.4, then

the time for filing or service of such paper (and for filing of service of papers responsive thereto

or dependent thereon) is hereby automatically enlarged so that filing or service will be due on the

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twentieth (20th) day following such assignment. No motion or order shall be submitted to the

Court in such event.

RULE 10 – PROTECTIVE ORDERS FOR INFORMATION

DEEMED CONFIDENTIAL OR PROPRIETARY


10.1 – Protective Order Respecting Proprietary Rights. In connection with the

electronic filing of any information in the Business Court, any person may apply by motion for

an order prohibiting the electronic filing in the matter of certain specifically identified

information on the grounds that such information is subject to a proprietary right or a right of

confidentiality and that electronic filing is likely to result in substantial prejudice to those rights.

A motion for such an order shall be filed not less than three business days before the information

to which the motion pertains is due to be filed with the Court. Nothing in this paragraph shall be

construed to change any requirement or standard that otherwise would be applicable for issuance

of a protective order per se or in connection with information contained in a paper record.

RULE 11 – SECURITY
11.1 – Confidentiality of Electronic Identity. Each person shall maintain as

confidential, except as expressly provided in these rules, the Electronic Identity issued to that

person by the Court. Upon learning about information constituting reasonable evidence of the

likely compromise of the confidentiality of the Electronic Identity, an individual shall

immediately notify the Court.

11.2 – Use of Electronic Identity by Additional Person. A person to whom an

Electronic Identity has been issued may authorize another person to file a paper using his number

and signature; however, the authorizing person shall retain full responsibility for any paper so

filed or for other use of such number and signature.

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11.3 – Compromise of Security. Any attempt or effort to avoid, compromise or alter

any security element of the Electronic filing and service system is strictly prohibited. Any

person receiving information constituting reasonable evidence of a likely occurrence of such an

attempt or effort shall immediately notify and cooperate with the Court concerning such

information.

RULE 12 – VIDEOCONFERENCING
Rule 12.1 – By Agreement. By mutual agreement, counsel may arrange for any

proceeding or conference to be held by videoconference by coordinating a schedule for such

meeting that is convenient with the Business Court. All Counsel and other participants shall be

subject to the same rules of procedure and decorum as if the meeting were held in the courtroom

of the Business Court.

Rule 12.2 – Responsibility for Videoconferencing Facilities. The parties are

responsible for obtaining all communications facilities and arranging all details as may be

required to connect and interface with the videoconferencing equipment available to the Business

Court. The Business Court will endeavor to make reasonable technical assistance available to

the parties concerning the specifications and requirements of the Court’s equipment, but all

responsibility for planning and executing all technical considerations required to hold a

videoconference successfully shall remain solely with the parties.

Rule 12.3 – Allocation of Videoconferencing Costs. In the absence of a contrary

agreement among the parties, each party participating by videoconference shall bear its own

costs of participating in the conference.

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Rule 12.4 – Court Reporter. Where any proceeding or conference is held by

videoconference, the court reporter transcribing such proceeding or conference will be present in

the Business Court.

RULE 13 – UNDERTAKINGS OF PARTIES

AND LIMITATION OF COURT LIABILITY

13.1 – Undertakings. Parties wishing to utilize the computer-assisted facilities of the

Business Court agree by accessing such facilities to abide by all aspects of these rules, including

conditions of access and use and security procedures set out herein and as they may subsequently

be published by the Business Court.

13.2 – No Business Court Liability. Attorneys, litigants, and all other persons granted

access to the computer-assisted facilities of the Business Court agree that the Business Court

shall not be liable to them for damages of any kind resulting from the negligent misuse of Court

facilities. Such misuse may result in Court sanctions or, in the instance of an aggrieved party, in

a right to pursue compensatory damages from a party who intentionally or negligently misuses

Court facilities. Such misuse shall be deemed to include the introduction of computer viruses

into information handling systems of the Court or other parties, where virus control software

recommended by the Court is not being used.

13.3 – Viruses. Any party filing electronically shall check each file to be transmitted for

viruses before transmitting. Any electronic filing submitted to the Court containing viruses will

be rejected by the Court’s computer system.

RULE 14 – CALENDARING AND COMMENCEMENT OF ACTIONS


14.1 – Preparation of Calendar. The calendar for each of the Business Court Judges

shall be prepared by that Business Court Judge and published on the Business Court Web Site.

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Where e-mail addresses have been provided to the Business Court, Notices of Hearing shall be

distributed by e-mail to each attorney of record (or party where there is no attorney of record) no

later than five (5) business days prior to the day of the hearing unless otherwise specified by the

Case Management Order. An attorney or party who has not provided an e-mail address to the

Court will receive Notices of Hearing via facsimile, or where no facsimile number is available,

by first class mail.

14.2 – Appearances. An attorney and/or unrepresented party who is notified to appear

for the setting of a calendar, pretrial conference, hearing of a motion, or for trial, shall, consistent

with ethical requirements, appear or have a partner, associate, or another attorney familiar with

the case present. Unless an attorney has been excused in advance by the Business Court Judge

and has given prior notice to opponent(s), a case will not be continued for failure of appearance.

14.3 – Notification of Settlement. When a case is settled, counsel for the plaintiff and

each unrepresented plaintiff of record shall notify the Business Court Judge or the Judge’s

designee within twenty-four (24) hours of the settlement and shall advise the Court of the

identity of the party or parties who will prepare and present the judgment, dismissal, or

stipulation of dismissal, which shall be presented within thirty (30) days of the notification of

settlement.

RULE 15 – MOTION PRACTICE

15.1 – All Motions to Be Filed in Business Court. After a case has been assigned or

designated to the Business Court, and for as long as the case is pending in this Court, parties

shall seek rulings on all motions in the case from this Court, and not from Superior Court Judges

or Clerks in the counties where cases originate.

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15.2 – Form. All motions, unless made orally during a hearing or a trial, shall be in

paper writing or electronic form and shall be accompanied by a brief, except as provided in

Rules 15.10 and 15.12. Each motion shall be set out in a separate paper. Where the terms

“Motion,” “Brief,” “Affidavit,” “Document,” “Deposition” and like designations are used herein,

they shall refer to such items in paper writing or electronic form as determined appropriate under

these rules.

15.3 – Content. All motions shall state with particularity the grounds therefor, shall cite

any statute or rule of procedure relied upon and shall set forth the relief or order sought.

15.4 – Motions Decided on Papers and Briefs.

(a) Motions shall be considered and decided by the Court on the pleadings,

admissible evidence, the official court file, and briefs, without hearing or oral argument, unless

otherwise ordered by the Court. Special considerations thought by counsel sufficient to warrant

a hearing or oral argument may be brought to the Court’s attention in the motion or response.

(b) If the Court grants oral argument on any motion, it shall give the parties at least

five (5) business days’ notice of the date and place of oral argument. The Court, however, for

good cause shown, may shorten the five (5)-day notice period. The Court may in its discretion

conduct any oral argument by telephone or videoconference.

15.5 – Movant’s Supporting Documents and Brief. If allegations of facts not

appearing of record are relied upon to support a motion, affidavits, parts of depositions, and other

pertinent documents then available shall accompany the motion. If supporting documents are not

then available, the moving party may move for an extension of time in accordance with Rule 9.2.

15.6 – Response to Motion and Brief. The respondent, if opposing a motion, shall file a

response, including brief, within twenty (20) days after service of the brief supporting the motion

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(or thirty (30) days if the motion is for summary judgment). If supporting documents are not

then available, the respondent may move for an extension of time in accordance with Rule 9.2.

For good cause appearing therefor, a respondent may be required by the Court to file any

response and supporting documents, including brief, within such shorter period of time as the

Court may specify.

15.7 – Reply Brief. A reply brief may be filed within ten (10) days after service of the

response. A reply brief is limited to discussion of matters newly raised in the response.

15.8 – Limitations on Length of Briefs. The Court favors concise briefs. Unless the

following limits are modified by the Court for good cause shown, briefs in support of motions

and responsive briefs shall be double-spaced and limited in length to a maximum of seven

thousand, five hundred (7,500) words. Reply briefs shall also be double-spaced and may not

exceed three thousand, seven hundred and fifty (3,750) words. Headings, footnotes, quotations,

and citations count toward these word-count limitations. The case caption on the first page of a

brief, any table of contents, any table of authorities, and any required certificates of counsel or of

a party do not count toward these word-count limitations.

Requests for expansion of word limitations shall be made five (5) business days prior to

filing the brief for which expansion of word limitations is sought. Requests for expansion of

word limitations that are filed simultaneously with the brief shall be denied.

Each brief shall include a certificate by the attorney or party that the brief complies with

this Rule 15.8. The attorney or party may rely upon the word count of the word-processing

system used to prepare the brief.

Unless a Case Management Order or another order of the Court expressly provides

otherwise, all parties who are jointly represented by any law firm shall join together in a single

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brief. Unless otherwise ordered by the Court, that single brief may not exceed the length limit

stated above.

15.9 – Suggestion of Subsequently Decided Authority. As an addendum to a brief,

response brief, or reply brief, a suggestion of subsequently decided controlling authority, without

argument, may be filed at any time prior to the Court’s ruling and shall contain only the citation

to the case relied upon, if published, or a copy of the opinion if the case is unpublished.

15.10 – Motions Not Requiring Briefs. No brief is required by either movant or

respondent, unless otherwise directed by the Court, with respect to the following motions:

(a) discovery motions in which the parties have agreed to the expedited procedures

described in Rule 15.12;

(b) for extension of time for the performance of an act required or allowed to be done,

provided request therefor is made before the expiration of the period originally prescribed or

extended by previous orders;

(c) to continue a pre-trial conference, hearing, or the trial of an action;

(d) to add parties;

(e) to amend the pleadings;

(f) to file supplemental pleadings;

(g) to appoint a next friend or guardian ad litem;

(h) for substitution of parties;

(i) to stay proceedings to enforce judgment; and

(j) for pro hac vice admission of counsel who are not members of the North Carolina

State Bar.

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The above motions, which are not required to be accompanied by a brief, shall state good

cause therefor and cite any applicable rule, statute, or other authority justifying the relief sought.

These motions shall be accompanied by a proposed order.

15.11 – Failure to File and Serve Motion Materials. The failure to file a brief or

response within the time specified in this rule shall constitute a waiver of the right thereafter to

file such brief or response, except upon a showing of excusable neglect. A motion

unaccompanied by a required brief may, in the discretion of the Court, be summarily denied. If a

respondent fails to file a response within the time required by this rule, the motion will be

considered and decided as an uncontested motion, and ordinarily will be granted without further

notice.

15.12 – Determination of Discovery Motions Through Oral Argument Without

Briefs. With the consent of both parties and as allowed by the Court, the parties may present

motions and the Court may resolve disputes regarding discovery matters through the use of an

expedited oral argument procedure. Such motions will routinely be limited to matters which can

be argued and determined in one hour or less.

RULE 16 – PRESENTATION TECHNOLOGY


16.1 – Generally. Electronic presentations and technologically generated demonstrative

evidence should be used to enhance the trier-of-fact’s understanding of facts in the action or to

further the convenience or efficiency of the litigation process. Presentations which contain

technological aspects that primarily add dramatization or “special effects” may be excluded

pursuant to North Carolina Rule of Evidence 403. In making such determination, the Court will

consider, in addition to any other matters it deems pertinent, the extent to which the presentation

serves proper purposes, the extent to which the manner of the presentation may enhance a party’s

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factual contentions without adequate foundation, and the opposing party’s technological

resources, means, and ability to prepare to rebut the presentation.

16.2 – Foundation. No graphic reconstructions, dramatizations, or other technologically

manufactured representations shall be permitted unless:

(a) all representations made or conveyed in the presentation that may be probative to

issues in the case or prejudicial to another party are supported by other competent evidence

presented in the trial; and

(b) the opposing party has been given an adequate notice and opportunity, determined

under the circumstances of the case, to review the presentation and obtain any relevant

information concerning its preparation prior to it being presented to the trier-of-fact.

16.3 – Virus Prevention. Any media brought into the Business Court for presentation

purposes shall be checked for viruses using appropriate virus scanning software before such

media are used in the courtroom.

16.4 – Presentation Formats. All presentation software not in conformance with the file

formats accepted by the Court may not be utilized in the courtroom without the prior express

approval of the Court.

RULE 17 – CASE MANAGEMENT MEETINGS,

REPORTS, CONFERENCES, AND ORDERS


17.1 – Case Management Meeting. Within thirty (30) days of filing of assignment or

designation of a case to the Business Court, or such shorter or longer time as the Court shall

order, the parties shall meet to discuss case management issues, as well as the potential content

of a Case Management Order. Unless the parties agree otherwise, counsel for the first plaintiff

listed in the complaint is responsible for initiating the scheduling of the Case Management

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Meeting. In initiating the scheduling of the Case Management Meeting, plaintiff’s counsel

should contact each law firm that he or she knows will appear in the case, even if that law firm

has not yet entered a formal appearance.

The parties’ Case Management Meeting should cover at least the following subjects:

(a) The length of the discovery period, the number of fact and expert depositions to

be permitted, and, as appropriate, the length and sequence of such depositions.

(b) A preliminary schedule for depositions of such persons and entities as the parties

are able to identify.

(c) The date by which parties shall complete disclosure of expert information

pursuant to N.C. R. Civ. P. 26(b)(4)(a).

(d) The identity and number of any Motions to Dismiss or other preliminary or pre-

discovery motions which shall be filed and the time period in which they shall be filed, briefed,

and argued.

(e) Which parties should be required to file joint briefs for purposes of the length

limitations on briefs under Rule 15.8.

(f) The time period after the close of discovery within which post-discovery

dispositive motions shall be filed, briefed, and argued and a tentative schedule for such activities.

(g) A tentative date by which the parties will be prepared for trial.

(h) The timing of any mediated settlement conference (see Rule 19) and the selection

of a mediator or group of mediators.

(i) An estimate of the volume of documents and/or electronic information likely to be

the subject of discovery in the case from parties and nonparties and whether there are

technological means, including but not limited to production of electronic images rather than

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paper documents and any associated protocol, that may render document discovery more

manageable at an acceptable cost.

(j) The number of interrogatories which shall be allowed each party.

(k) The advisability of using special master(s) for fact finding, mediation of discovery

disputes or such other matters as the parties may agree upon.

(l) The situs of pretrial and trial proceedings.

(m) An identification of any disputes concerning personal jurisdiction, subject matter

jurisdiction, or venue, or a stipulation that no such controversies exist at the time of the Case

Management Meeting.

(n) Whether or not a party or parties desire to use the electronic filing, case tracking,

scanning, videographic, and real-time court reporting capabilities of the Court, and, to the extent

this is the case, a determination of:

(1) Fairness issues, including but not necessarily limited to use of such

capabilities by some but not all parties and/or by parties whose resources permit or

require variations in the use of such capabilities;

(2) Issues related to compatibility of Court and party facilities and equipment;

(3) Issues related to the use of demonstrative exhibits and any balancing of

relevance and potential prejudice which may need to occur in connection with such

exhibits;

(4) Such other issues related to the use of the Court’s and Parties’ special

technological facilities as may be raised by any party or the Court or its technological

advisor, given the nature of the case and the resources of the parties.

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(o) A good faith estimate by counsel for each party based upon consultation with

each such party of the costs each party is likely to incur in pursuing the litigation through trial

court adjudication, provided, however, that any party may, instead of disclosing this information

in a Case Management Meeting or Case Management Report, file this information with the Court

under seal and without service of the information on any other party, or discuss this information

privately with the Court at the Case Management Conference.

(p) A preliminary listing of the principal legal and factual issues which counsel

believe will need to be decided in the case.

(q) A preliminary listing of any issues in the case that any party believes are governed

by law other than North Carolina law or federal law.

(r) The need for retention of potentially relevant documents, including but not limited

to documents stored electronically and the need to suspend all automatic deletions of electronic

documents or overwriting of backup tapes which may contain potentially relevant information.

The parties shall also discuss the need for a document preservation order.

(s) The need for cost-shifting of expenses related to discovery of information stored

electronically, including the restoration of back-up tapes and forensic examination of computers,

and the possibility of obtaining the desired information from alternate sources at reduced

expense.

(t) The format in which the electronic records are to be produced, and procedures to

avoid unnecessary burden and expense associated with such production. If metadata is to be

produced, the parties shall discuss a protocol for producing such information, including the

format for production (e.g., native, copy, original), and the ability to search such information.

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(u) The need for security measures to be adopted to protect any information that is

produced in electronic format or that will be converted into electronic format and stored on

counsel’s computer systems. Such discussion should encompass whether and under what

circumstances clients will be afforded access to the information produced by another party and

what security measures should be used for such access.

(v) Such other matters as the Court may assign to the parties for their consideration.

17.2 – Case Management Report. The views of each party on the matters set forth in

Section 17.1 above, as expressed through counsel or any pro se litigant(s), shall be reduced to

writing, circulated for amendment or modification by each party, and filed with the Court in the

form of a Case Management Report. Unless the parties agree otherwise, counsel for the first

plaintiff listed in the complaint is responsible to prepare and circulate the initial draft of the Case

Management Report to all counsel, who shall have five days within which to propose revisions to

the report or raise issues about which the parties disagree. If the parties disagree on any issues in

the Case Management Report, they shall nonetheless file a single Case Management Report that,

in any areas of disagreement, states the views of each party. The final Case Management Report

shall be signed by counsel for each party and shall be filed with the Court within fifteen (15)

days of the Case Management Meeting.

17.3 – Case Management Conference. Within twenty (20) days of the case

management meeting of the parties or such longer period as the Court may prescribe, the Court

will convene a Case Management Conference with attendance by counsel for all parties and their

clients (or in the case of a business entity, such representative as has authority to make all

binding litigation-related decisions) unless the Court shall, in its discretion, excuse the

attendance of clients. Such conference will be conducted with as much informality as possible

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and with the active participation of clients encouraged. The Court will hear the views of counsel

and/or clients on such issues listed in Rule 17.1 above as are pertinent to the case and/or on

which there are material differences of opinion.

17.4 – Case Management Order. Following the Case Management Conference, the

Court shall issue a Case Management Order in the form appended to these Rules as Form 2. The

Case Management Order will deal with such issues developed in the Case Management Meeting

and/or the Case Management Conference as may be determined at the time, given the nature and

status of the case. The provisions of the Case Management Order may not be deviated from

without notice, grant of a hearing which is discretionary with the Court, good cause shown and

entry of an order by the Court. The Case Management Order shall also specify a schedule of

status conferences to assess the functioning of the Case Management Order, assess the progress

of the case, and enter such further orders or revisions in the Case Management Order, including a

trial date, as the Court may deem necessary or appropriate.

17.5 – Effect on Other Rules. This Rule 17 is intended to supplement, not substitute for,

the provisions of Rule 7 of the General Rules of Practice for Superior and District Courts and its

related sample form dealing with pre-trial conferences and orders.

RULE 18 – DISCOVERY
18.1 – North Carolina Rules of Civil Procedure Applicable. Except as expressly

supplemented by these rules, the North Carolina Rules of Civil Procedure governing the conduct

of depositions and discovery in State Courts shall control in the Business Court.

18.2 – Presumptive Limits on Discovery Procedures. Subject to an order modifying

discovery procedures for good cause shown, the Court expects discovery in cases assigned to the

Business Court to be completed within nine (9) months from issuance of the Case Management

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Order. Parties are free, however, to begin discovery prior to issuance of the Case Management

Order. Presumptively, subject to stipulation of the parties and order of the Court for good cause

shown, interrogatories (including sub-parts) and requests for admission are limited to fifty (50) in

number by each party. Depositions are presumptively limited to twelve (12) depositions each

(not including depositions of testifying experts) by the plaintiffs, by the defendants, and by any

third-party defendants, subject to alteration by the Court.

18.3 – Depositions. The Court expects counsel to conduct discovery in good faith and to

cooperate and be courteous with each other in all phases of the discovery process. Depositions

shall be conducted in accordance with the following guidelines:

(a) Counsel shall not direct or request that a witness not answer a question, unless

that counsel has objected to the question on the ground that the answer is protected by a privilege

or a limitation on evidence directed by the Court.

(b) Counsel shall not make objections or statements which might suggest an answer

to a witness. Counsel’s statements when making objections should be succinct, stating briefly

the basis of the objection and nothing more.

(c) Counsel and any witness/client shall not engage in private, off the record

conferences while the deposition is proceeding in session, except for the purpose of deciding

whether to assert a privilege.

(d) Deposing counsel shall provide to counsel for the witness and counsel for all

parties present a copy of all documents shown to the witness during the deposition. The copy

may be provided either before the deposition begins or contemporaneously with the showing of

each document to the witness. The witness and counsel for the witness may not discuss

documents privately before the witness answers questions about them.

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18.4 – No Filing of Discovery Materials. Depositions and deposition notices,

interrogatories, requests for documents, requests for admission, and answers and responses

thereto shall not be filed electronically on the Court’s Electronic filing and service system unless

the Court so orders or unless the Court will need such documents in a pretrial proceeding. All

discovery materials shall be served on other counsel or parties, and may be served electronically

pursuant to Rule 6.8 above. The party taking a deposition or obtaining any material through

discovery (including through third party discovery) is responsible for the preservation and

delivery of such material to the Court when needed or ordered in the form specified by the Court.

Any party seeking to compel discovery or other pre-trial relief based upon discovery material

which has not been filed shall identify the specific portion of the material which is directly

relevant and ensure that it is filed as an attachment to the application for relief.

18.5 – Discovery with Respect to Expert Witnesses. Discovery with respect to experts,

including expert depositions and disclosure of expert information, shall be conducted within the

discovery period set forth in the Case Management Order.

18.6 – Conference of Attorneys with Respect to Motions and Objections Relating to

Discovery.

(a) The Court will not consider motions and objections relating to discovery unless

moving counsel files a certificate that, after personal consultation and diligent attempts to resolve

differences, the parties are unable to reach an accord. The certificate shall set forth the date of

the conference, the names of the participating attorneys, and the specific results achieved. It

shall be the responsibility of counsel for the movant to arrange for the conference and, in the

absence of an agreement to the contrary, the conference shall be held in the office of the attorney

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nearest to the Court where the case was originally filed. Alternatively, at any party’s request, the

conference may be held by telephone.

(b) Prior to filing motions and objections relating to discovery of information stored

electronically, the parties shall discuss the possibility of shifting costs for electronic discovery,

the use of Rule 30(b)(6) depositions of information technology personnel, and informal means of

resolving disputes regarding technology and electronically stored information. The certificate

required by Rule 18.6(a) shall address efforts to resolve the dispute through these and any other

means related to discovery of information stored electronically.

18.7 – Expedited Resolution of Some Discovery Disputes. If, after a conference as

required by Rule 18.6, the parties agree that a discovery dispute can be ruled upon in a telephone

or videoconference of no more than thirty (30) minutes, the Court will schedule such a

conference and rule on the dispute without briefing by the parties. Alternatively, if the parties

agree that the dispute can be ruled upon in an in-court hearing of no more than one hour, without

briefing, subject to Rule 15.12 the Court will schedule a hearing of such matter at the earliest

date reasonably available to the Court and the parties. The fact that these proceedings are

expedited and are conducted without briefing does not alter the application of

N.C. R. Civ. P. 37(a)(4) relating to the imposition of sanctions and the award of expenses.

18.8 – Completion of Discovery. The requirement that discovery be completed within a

specified time means that adequate provisions must be made for interrogatories and requests for

admission to be answered, for documents to be produced, and for depositions to be held within

the discovery period. Normally the Court will not entertain motions relating to discovery

conducted after the close of the discovery period as set forth in the Court’s Case Management

Order.

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18.9 – Extension of the Discovery Period or Request for More Discovery. Motions

seeking an extension of the discovery period or permission to take more discovery than is

permitted under the Case Management Order shall be made or presented prior to the expiration

of the time within which discovery is required to be completed. Such motions must set forth

good cause justifying the additional time or additional discovery and will be granted or approved

only upon such a showing of good cause and a showing that the parties have diligently pursued

discovery. The Court will permit additional depositions usually only upon a showing of

exceptionally good cause.

18.10 – Trial Preparation After the Close of Discovery. For good cause appearing

therefor, the physical or mental examination of a party may be ordered at any time prior to or

during trial. Ordinarily, the deposition of a material witness not subject to subpoena should be

taken during discovery. However, the deposition of a material witness who agrees to appear for

trial, but later becomes unavailable or refuses to attend, may be ordered at any time prior to or

during trial.

RULE 19 – MEDIATION
19.1 – Mediation Mandatory in All Cases. Mediation is a valued tool in the resolution

of litigated matters. As such, all cases pending in the Business Court shall be subject to the

Rules Implementing Statewide Mediated Settlement Conferences in Superior Court Civil Actions

and such other Rules or orders consistent therewith as may be established or entered by the

Business Court.

19.2 – Approved List of Business Court Mediators. The Business Court maintains on

its website a list of mediators who have had experience with cases within the jurisdiction of the

Business Court. Parties are not, however, required to select a mediator from this list. In the

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event the parties to a Business Court case are unable to agree on a mediator, upon notice from a

party, the Business Court will appoint a mediator from the Business Court’s approved list to act

as mediator in that case.

RULE 20 – OPENINGS AND CLOSINGS


20.1 – Opening Statements. At any time before the presentation of evidence, counsel

for each party may make an opening statement setting forth the grounds of claim or defense. The

parties may elect to waive opening statements. Opening statements may be limited in time and

scope in the discretion of the Court.

20.2 – Closing Argument. If no evidence is produced by the defendant, the right to open

and close the argument to the jury shall belong to the defendant. If a question arises as to

whether the plaintiff or the defendant has the final argument to the jury, the Court shall decide

who is so entitled.

In a case where there are multiple defendants, if any defendant introduces evidence, the

closing argument shall belong to the plaintiff, unless the Business Court Judge in his discretion

orders otherwise.

RULE 21 – EXAMINATION OF WITNESSES


21.1 – When several counsel are employed by the same party, the examination or cross-

examination of each witness for such party shall be conducted by one counsel, but examining

counsel may change with each successive witness or, with leave of the Court, during a prolonged

examination of a single witness.

RULE 22 – COURTROOM DECORUM


22.1 – Communications and Position. Counsel are at all times to conduct themselves

with dignity and propriety. All statements and communications to the Court shall be clearly and

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audibly made from a standing position behind the counsel table or the computer-assisted podium.

Counsel shall not approach the bench except upon the permission or request of the Court.

Colloquies between and disrespectful references to opposing counsel shall be strictly

avoided. Adverse witnesses and parties shall be treated with fairness and due consideration.

Abusive language or offensive personal references are strictly prohibited.

The examination of witnesses and jurors shall be conducted from a sitting position behind

the counsel table or from the computer-assisted podium, except as otherwise permitted by the

Court. Counsel may only approach a witness for the purpose of presenting, inquiring about, or

examining that witness with respect to an exhibit, document, or diagram.

22.2 – Professional Demeanor. The conduct of the lawyers before the Court and with

other lawyers should be characterized by candor and fairness. Counsel shall not knowingly

misrepresent the contents of documents or other exhibits, the testimony of a witness, the

language or argument of opposing counsel or the language of a decision or other authority; nor

shall counsel offer evidence known to be inadmissible or cross-examine without a good faith

basis for doing so. In an argument addressed to the Court, remarks or statements may not be

interjected to improperly influence or mislead the jury.

Counsel shall yield gracefully to rulings of the Court and avoid disrespectful remarks

both in Court and out. Counsel shall at all times conduct themselves in a manner which

promotes respect for the Court and the judicial process.

RULE 23 – JURIES
23.1 – Jury Instruction Conference. At the close of the evidence (or at such earlier

time as the judge may reasonably direct) in every jury trial, the judge shall conduct a conference

on instructions with the attorneys of record (or party, if not represented by counsel). Such

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conference shall be out of the presence of the jury, and shall be held for the purpose of

discussing the proposed instructions to be given to the jury. If special instructions are desired,

they must be submitted in writing to the trial judge at or before the jury instruction conference.

23.2 – Objections to Instructions. An opportunity shall be given to the attorneys (or

party, if not represented by counsel) to request any additional instructions or to object to any of

those instructions proposed by the judge. Any such requests, objections, and the rulings of the

Court thereon shall be placed on the record.

At the conclusion of the charge and before the jury begins its deliberations (and out of the

hearing, or upon request, out of the presence of the jury), counsel (or party, if not represented by

counsel) shall be given an opportunity to object on the record to any portion of the charge as

given, or omission therefrom, stating with particularity the objection and grounds therefor.

23.3 – Treatment of Instructions during Jury Deliberations. The Court may recall the

jury after they have retired and give them additional instructions in order: (i) to correct or

withdraw an erroneous instruction; (ii) to inform the jury on a point of law which should have

been covered in the original instructions; or (iii) to respond to questions posed by the jury. The

provisions of Rule 23.2 above are also applicable to any such additional instructions or other

information provided at this stage of the proceeding. The Court, in its discretion, may give a

copy of the instructions to the foreperson or to all members of the jury.

23.4 – Contacts with Jurors Prohibited. All parties, witnesses, and attorneys shall

avoid any extra-judicial contact or communications with a member of a jury venire or panel who

has been or may be selected in a case in which that person is involved. No person may have any

extra-judicial contact or communication, either directly or indirectly, with a member of a jury

venire or panel which may reasonably have the effect of influencing, or which is intended to

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influence, the potential juror or sitting juror. Attorneys for parties shall inform their clients and

witnesses of this rule.

No person shall approach a juror, either directly or through any member of his immediate

family, in an effort to secure information concerning the juror’s background. No provision of

this rule is intended to prohibit communication with a juror after the juror has been dismissed

from further service, so long as the communication does not tend to harass, humiliate, or

intimidate the juror in any fashion.

23.5 – Presence of Counsel during Jury Deliberation. The right to be present during

the trial of civil cases shall be deemed to be waived by a party or counsel by voluntary absence

from the courtroom at a time when it is known that proceedings are being conducted or are about

to be conducted. In such event the proceedings, including the giving of additional instructions to

the jury after they have once retired, or receipt of the verdict, may go forward without waiting

for the arrival or return of counsel or a party.

RULE 24 – TRIAL DATES AND FINAL PRETRIAL PREPARATION


24.1 – Trial Date. Trial shall commence on the date established by the Court, normally

through revisions to the Case Management Order, or in such other manner as the Court shall

deem appropriate. The Court will consider a request to continue a trial date only if the request is

signed by both the party and counsel for the party.

24.2 – Final Pretrial Preparation. Except in cases deemed by the Court to require

different arrangements, no later than twenty (20) days before trial, the parties shall file trial

briefs, along with proposed instructions on the issues in jury cases or findings of fact and

conclusions of law in non-jury cases. The parties will also file at this time any motions in limine

or other motions they wish to have considered prior to trial. The Court may in its discretion

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schedule a final pretrial conference to deal with such motions or other pretrial matters as deemed

appropriate. Any party, or the Court on its own motion, may request a pretrial hearing or a

telephone or videoconference to address matters relating to final pretrial preparation or

settlement of a case. This rule is not intended to prevent submission of proposed jury

instructions as provided for in Rule 23.1.

RULE 25 – COURT REPORTING CONSIDERATIONS


25.1 - Scheduling of Court Reporters. Barring extenuating circumstances, official

court reporters will be used to report all hearings in the Business Court; however, if both parties

agree to hire a freelance reporter, that reporter would then become the official reporter for the

particular hearing or trial that he or she was hired to report. Where feasible, the same court

reporter will be used to report all hearings in a case. The scheduling of court reporters will be

handled through a joint effort of the local scheduling coordinator and the Judicial Scheduling

Coordinator for the Administrative Office of the Courts.

25.2 – Request for Real-Time Transcription. A request for real-time transcription of

the proceedings before the Court shall be made, to the extent possible, during the Case

Management Conference. The parties will use the appropriate AOC Form to make such a

request and shall submit the same to the Judicial Scheduling Coordinator for the Administrative

Office of the Courts. Prior to the proceeding for which transcription is needed, the parties shall

confer with the reporter assigned to the case regarding specific needs (e.g., real-time feed, rough

ASCII, daily copy) and shall arrange for compensation directly with the reporter. The parties,

prior to trial, will provide the reporter with information particular to the case to aid in clarity of

transcription, e.g., pleadings, deposition transcripts, glossary of unique terms, etc.

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25.3 – Realtime Feeds or Rough-Draft Transcripts. A “realtime feed” or “rough-draft

transcript” – that which is displayed simultaneously with proceedings occurring before the Court

or that which is provided by e-mail or ASCII disk prior to certification – may be referred to or

quoted from during a proceeding, provided, however, that any dispute concerning the accuracy

of the transcription of a realtime feed or rough draft transcript will be resolved by the Court in its

discretion after consultation with the reporter.

25.4 – Publication of Transcripts. Transcripts of proceedings before the Business Court

shall be published on the Court’s Web Site in the sole discretion of the Business Court Judge.

See Rule 27. Access to such transcripts via the Web Site, however, shall only be made available

to those counsel, pro se litigants or members of the public with authorization codes issued by the

Court after payment of the reporter’s transcription fee or under such other conditions as are set

by the Court.

25.5 – Storage and Retention of Court Reporters’ Notes. Per N.C. Gen. Stat. § 7A-95,

if stenograph, shorthand, or voice writing equipment is used to record proceedings in Superior

Court, the original tapes, notes, discs, or other records are the property of the state of North

Carolina, and the Clerk of Superior Court is the ultimate custodian of the notes; therefore, when

a hearing or trial is completed, the court reporter shall leave his or her notes with the clerk. The

court reporter shall not take those notes with him or her for any reason other than to prepare the

transcript in the case. If a transcript has been ordered and the reporter signs out the tapes, notes,

etc. from the clerk, that court reporter shall return those tapes, notes, etc. to the clerk’s office

upon completion of the transcript. This rule applies to both official and freelance court reporters.

RULE 26 – APPELLATE RECORD CONSIDERATIONS

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26.1 – Filing of Transcripts. Certified original transcripts and other record items shall

be filed in accordance with Rule 7 of the North Carolina Rules of Appellate Procedure and shall

be subject to any further requirement that the appellate court deems appropriate. Parties are

encouraged to assist the Court in transmitting original transcripts and other records electronically

in addition to the format required by Rule 7 of the North Carolina Rules of Appellate Procedure

to the end that the entire appellate record may be transmitted to the appeals court as efficiently

and expeditiously as possible.

26.2 – Signatures on Appellate Materials. Electronically filed transcripts shall contain

such means of signature as may be specified by the appellate courts.

RULE 27 – WEB SITE AND PUBLICATION


27.1 – Web Site. The Business Court shall maintain a site on the World Wide Web for

ready access to members of the bar and to the public generally. The Web Site shall be located at

the uniform resource locator www.ncbusinesscourt.net. The Web Site will store for ready

retrieval basic information about the Business Court, including but not limited to these Rules and

the procedure for Complex Business Case designation. In addition, the Web Site will store, in

the sole discretion of the Business Court Judges:

(a) the Court’s address, facsimile machine numbers, and the mailing and physical

addresses of the chambers of Business Court Judges;

(b) the Court’s docket;

(c) pleadings filed with the Court;

(d) motions filed with the Court;

(e) briefs filed with the Court;

(f) the opinions of the Court; and

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(g) rough-draft and/or official transcripts of proceedings before the Court.

27.2 – Citation to Business Court Opinions. Citation to the opinions of the Business

Court shall be to the year of the opinion, followed by “NCBC,” followed by the opinion number,

e.g., “1999 NCBC 1.” Pinpoint notations to Business Court opinions shall be made to the

numbered paragraph in which the cited material appears, e.g., “1999 NCBC 1 ¶1.”

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FORM 1

STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE


COURT DIVISION
COUNTY OF