The New York Commercial Division celebrated its 20th anniversary in 2015. In the last 20 years, we have watched the creation and development of business courts or commercial courts within state-trial-court civil systems. The dockets in these courts have grown steadily and many of our clients are finding themselves in these courts. Our attorneys have served in various leadership roles since the inception of the Commercial Division, New York’s business court. Partner Robert L. Haig
currently serves as chair of the court’s Commercial Division Advisory Council and Neil Merkl
is a member of the Council. On November 16, 2008, Mr. Haig was inducted as an Honorary Chapter Member of the American College of Business Court Judges in recognition of his efforts to develop business courts in New York and many other states and countries. Kelley Drye attorneys have made significant contributions to the treatise entitled Commercial Litigation in New York State Courts, (4th edition
). We continue to monitor the commercial courts for significant rule proposals and adoptions and formation of these courts in key venues and will share information as it becomes available. We invite you to view a video
featuring ten General Counsel of major corporations, that explains the evolution of New York’s Commercial Division and the advantages of bringing complex business cases in that forum.
Standard Form Confidentiality Order
On January 19, 2016, the Administration Board of New York’s Unified Court System published and sought public comment on an amendment to the SFO, proposed by the Advisory Council’s Subcommittee on Procedural Rules to Promote Efficient Case Resolution. The proposed amendment would revise and promulgate the SFO as an appendix to the Rules of the Commercial Division (22 NYCRR 202.70(g)), and would adopt a new rule setting forth procedures for the use of SFOs. The Subcommittee’s proposal would revise paragraph 12 to provide a mechanism for filing confidential documents on ECF, which has become far more prevalent throughout the Commercial Division and, in many counties, is now mandatory. The proposal would also remove the procedure set forth in paragraph 12(b) of the SFO, which allows parties to bypass a formal motion to seal. Comments to the proposed rule are due by March 21, 2016. To read more about this proposed rule change, read Kelley Drye’s advisory here.
Rulings in Disclosure Conferences
Litigants in New York’s Commercial Division may soon be able to require written memorialization of rulings at discovery conferences if the most recent rule recommended by the Commercial Division’s Advisory Council is adopted. The goal of this proposal is to make adjudication of complex commercial disputes in the Commercial Division more efficient and more attractive to the business community. In making this particular proposal, the Advisory Committee appears to recognize that litigants are often required to have a conference with a nonjudicial member of the Court’s staff prior to being permitted to engage in formal motion practice over a discovery dispute. Comments to the proposed rule are due by March 14, 2016. To read more about this proposed rule change, read Kelley Drye’s advisory here
Status on New Jersey’s Complex Business Litigation Program
New Jersey on January 1, 2015 implemented the program in which one judge in each of the state’s fifteen vicinages is assigned to handle complex business, commercial and construction cases that are self-designated by the parties or counsel to be adjudicated in those specialized courts. The amount in controversy must be at least $200,000 to qualify, unless the court determines that cases with a lesser amount in controversy are appropriate for inclusion. For more on New Jersey’s development of commercial courts, please read our advisory available here.
Revised Model Preliminary Conference Order
The goal of the new proposed form is to inform the judiciary and practitioners alike of the many discovery and other rules adopted in the Commercial Division over the past eighteen months. The most pertinent of the changes to the proposed revised preliminary conference form are: new section for pre answer motion practice; a revised section on discovery pertaining to document production, interrogatories, depositions, disclosure disputes and e-discovery; a revised section on alternative disputes resolution; and specific directives for parties to inform the Court of the disposition of cases and to sign up for the free eTrack
court notification service. Public comment on the new proposed form is due by March 11, 2016. Kelley Drye’s advisory on this proposed rule change is available here
Selection of a “Settlement Judge”
Litigants in New York’s Commercial Division who are interested in having the ability to formally request settlement conferences with a “settlement judge” other than the justice assigned to hear the case may soon be able to do so if the latest proposed rule from the Commercial Division’s Advisory Council is adopted. Notably, the proposed rule is not mandatory. Rather referral to a “settlement judge” occurs only upon the consent of both the trial judge and the settlement judge. Comments to the proposed rule are due by March 7, 2016. To read more about this, please see our advisory here
Indiana Introduces Specialized Business Courts
The Indiana Supreme Court this week established six commercial courts dedicated to resolving complex business disputes. In doing so, Indiana joins nearly two dozen states across the country that, since the early 1990s, have introduced specialized business courts in an attempt to provide a venue in which complex commercial matters can be adjudicated more efficiently and effectively. Precisely how the commercial courts will operate remains to be seen. What will constitute a commercial dispute eligible to be adjudicated in the specialized courts is not yet clear, nor is there any information regarding the procedures applicable in those cases. To learn more about Indiana’s business courts, please read our advisory here.