Business court closer to becoming reality in West Virginia

Jessica M. Karmasek Jul. 15, 2011, 12:58pm


CHARLESTON, W.Va. (Legal Newsline) - The West Virginia Supreme Court of Appeals has taken a significant step towards creating a business court in the state.

At its June administrative conference, the state's high court approved the Business Court Committee's proposal to allow the committee to develop rules and procedures to create the court.

The Court also directed the committee to consider any changes in West Virginia Code that may need to be enacted in the 2012 legislative session to allow a business court to be established.

"This should not be misunderstood as the Court's approval of a business court at this point. The final approval of the rules is still some months ahead," Supreme Court Administrative Director Steve Canterbury said in a statement Friday.

Since the Court's action last month, the Business Court Committee has met twice, including a conference call on Thursday, at which time the committee came to a consensus on several issues. They include:

- The committee plans to have written rules available for public comment and public hearings before the end of the year and proposed legislation available for the 2012 legislative session;

- The proposed business court should be called a Complex Commercial Litigation Court;

- It would have five to seven judges who also would be active circuit judges appointed by the Chief Justice of the Supreme Court to serve terms of between three and seven years each. The judges would have a background in business or commercial litigation and would receive special training by the National Association of Business Court Judges;

- The proposed Complex Commercial Litigation Court would have statewide jurisdiction and operate in five to seven regional divisions based around the state's largest population areas;

- Either party in a case could file a Certificate of Designation for a case to be handled in the Complex Commercial Litigation Court. A presiding circuit court judge also could designate a case to be handled in the Complex Commercial Litigation Court, or both parties could agree that the case would be handled in the court. There would be an additional filing fee;

- Mediation would be mandatory in all cases assigned to the new court. The Complex Commercial Litigation Court judges would act as the mediators;

- Time standards and case management rules would be designed to move cases expeditiously through the court process to a final resolution;

- The court would use electronic filing as well as traditional paper filing; and

- It would be presumptively mandatory for certain types of cases to be handled by the court. Conversely, certain types of cases would be presumptively non-complex commercial cases and would never be handled by the court.

Those cases that would be presumptively mandatory and would be handled by the court would be disputes between two or more businesses involving contracts, sales, and Uniform Commercial Code disputes; the purchase or sale of a business; non-consumer debts; the internal affairs of a business (like shareholder disputes); trade secrets; non-compete agreements; intellectual property cases; securities cases; commercial insurance coverage disputes; malpractice lawsuits involving corporations, corporate lawyers, corporate accountants, corporate consultants, corporate executives; and torts between businesses.

Cases that could never be handled by the court would be consumer litigation, including product liability, personal injury, wrongful death, and consumer class action cases; employee occupational health and safety cases involving injuries in the workplace; consumer environmental actions, like cases involving toxic spills and chemical exposure; consumer malpractice lawsuits, including lawsuits against doctors and hospitals; administrative lawsuits against government agencies, including tax disputes; consumer or residential real estate or landlord disputes; domestic relations cases, even those involving a business; and criminal cases, even those involving a business.

"The goal of this committee is to design a court that can focus on the complex issues that arise in commercial litigation that can get bogged-down in a busy circuit court docket and also to relieve busy circuit court judges from a significant burden of handling a novel or complex issues that they may not be equipped to handle," Judge Darrell Pratt, chairman of the Business Court Committee, said in a statement.

"We hope it will provide for a more expeditious and judicious resolution of complex commercial disputes and give the business litigants confidence in a quick and appropriate decision. Business people tell us: 'Time is money.'

"We want these specially trained judges to have statewide jurisdiction but operate in a regional venue for the convenience of the litigants. Even small counties or small circuits can have complex commercial litigation," said Pratt, who serves on the state's 24th Judicial Circuit.

The Business Court Committee plans to meet in August to refine its plan for rules and procedures.

It will then invite a group of defense and plaintiffs' attorneys and representatives of business to work with it on refining the written rules before releasing them for public comment and public hearings, Pratt said.

House Speaker Rick Thompson, D-Wayne, released a statement Friday applauding the Supreme Court for moving closer to the development of a business court.

Thompson has long advocated the creation of such a court system.

"I am a strong advocate of the creation of a business court system in West Virginia because I believe it is vital to the health of this state's business climate," he said.

Last year, then-Gov. Joe Manchin signed House Bill 4352, which allows the Supreme Court to establish a business court docket within the existing circuit court system, much like the court establishes separate docket systems for the management of criminal cases, civil cases, juvenile cases, abuse and neglect cases, and other specialized dockets.

A business court, the Speaker has said, will help the state attract new businesses.

"We need businesses in the state for jobs, but we also need them to improve our infrastructure," he said in an interview with the West Virginia Record last May. "We've weathered this financial crisis better than most states, and we want to show businesses that right now is a good time to come to West Virginia."

Thompson said Friday he is "closely following" the Business Court Committee's progress and is "greatly encouraged" so far.

He said he is "confident" that the House will welcome further legislation to "ensure our state courts provide an effective and efficient business court docket specifically geared toward to the sometimes complex issues unique to the business community."

"I look forward to working with the committee and the Court on making that happen," Thompson said.

From Legal Newsline: Reach Jessica Karmasek by e-mail at

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