Mass. Experimental Business Litigation Session Grows, But New Counties Slow To Join

Despite the recent announcement that the Massachusetts Superior Court business litigation session would expand to accept cases arising in Essex, Middlesex and Norfolk counties, the court has no plans to physically hold sessions in those counties.

Court officials recently announced that the “strictly business” session — which has been applauded by corporate lawyers for its efficiency and lamented by others for its “selectivity” — would remain permanently in Boston and would accept cases from the three other major counties.

If the case has already been filed outside Suffolk County but the parties want it in the business session, an assented-to motion to transfer will suffice, according to Boston banking lawyer Donn A. Randall, who regularly practices in the session.

Superior Court Judge Allan van Gestel — who has handled the bulk of the session’s cases since its inception in 2000 — continued to express qualified optimism about the session.

Van Gestel said no additional judges or courtrooms would be devoted to the session any time soon, and that, in fact, the session’s popularity among the three new counties had yet to pick up.

Of 15 new cases filed since March 3, said the judge, only five have come from counties other than Suffolk.

Despite the session’s slow expansion, Superior Court Chief Justice Suzanne V. DelVecchio said she hopes to hold business litigation sessions in Worcester or Middlesex counties as soon as there is an appropriate locale.

DelVecchio established the special session in October 2000 to adjudicate complex business disputes. The session was prompted in part by a growing dissatisfaction among lawyers and their business clients with the Massachusetts court system’s ability to handle commercial disputes.

Staying In Boston

Van Gestel said “it’s useful to have the court physically remain here in Boston. [Superior Court] Judge [Margot] Botsford [the other judge who hears cases in the session] and I can talk about issues that come up and fill in for each other if, for instance, a speedy hearing is needed.”

The judge expects cases from the three non-Suffolk counties to pick up as the word spreads about the expansion.

Van Gestel notes that lawyers new to the session should know within one to three days of when the complaint is filed whether the session’s qualifying criteria are met.

Lawyers must use a special “business case” civil action cover sheet and file all cases in Suffolk County even though the parties’ principal place of business might be in another county. Further, the case must meet certain criteria.

In addition to one or both parties being domiciled in Essex, Middlesex, Norfolk or Suffolk Counties, the judges look for complex issues, lots of parties or other attributes that would justify “special management” of the case in the business session, explained van Gestel.

Types of claims that will qualify for the special session include:

• claims under the UCC involving complex issues;
• shareholder derivative claims;
• insurance, construction, real estate and consumer matters involving complex issues;
• trade secret or intellectual property disputes;
• claims involving business relationships, such as breaches of contract or fiduciary duties, fraud, misrepresentation, or business torts; and
• claims of unfair trade practices involving complex issues.

A more comprehensive list can be found on the back of the special civil action cover sheet available at the Suffolk Superior Court clerk’s office.

The Future

Beth I.Z. Boland, co-chair of the 14-member committee set up to evaluate the business session, said at some point Massachusetts may want to consider expanding the session to include other types of complex civil litigation.

Medical malpractice, products liability and asbestos-related injury cases are among those that could be included, she said.

Boland, a Boston litigator, pointed out that Connecticut and California already have such expanded special sessions.

But DelVecchio distinguished between business disputes and other practice areas. She said that there are certain types of civil cases that need to be handled differently because the litigants require more immediate decisions on temporary restraining orders or motions for permanent injunctions, for example.

“We don’t find that with medical malpractice and other types of civil cases,” she noted.

The chief judge also said she does not plan to establish a session to handle non-business-related, complex civil lawsuits because “I’m not going to experiment just for the sake of experimenting.”

On how long van Gestel and Botsford will be involved, DelVecchio said “the term is at their pleasure.”

Questions or comments may be directed to the writer at [email protected].