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  • September 15, 2021

    Business Dispute? It Should Go to the Business Court Docket

    Wisconsin's Commercial Court Pilot Project has expanded to 26 counties. Are you properly designating your case for the commercial/business court docket?

    Joe Forward

    lawyer on courthouse steps

    Sept. 15, 2021 – A couple weeks ago, Marinette County Circuit Court Judge James Morrison received pleadings on a Friday afternoon at 4:15 p.m. It was an emergency situation involving garnishment and a payroll processing company.

    The dispute affected the payroll for 500 employees, possibly prohibiting the employees from receiving paychecks. The following Tuesday, Judge Morrison held a hearing.

    “Within 15 minutes, everybody recognized that they got the wrong people involved and the money could be released and the payroll checks did not disappear,” said Judge Morrison, one of four judges who sit in District Eight’s Commercial/Business Court.

    Judge Morrison said a quick resolution on a business issue affecting 500 employees illustrates the benefit of Wisconsin’s Commercial Docket Pilot Project, also known as the Business Court Pilot Project, which has now expanded to 26 counties.

    “The last thing employees need today is to be told that your money is tied up in someone else’s business dispute,” said Judge Morrison, also a member of the Business Court Advisory Committee, which is ushering the business courts in Wisconsin.

    Laura Brenner, a business litigator at Reinhart Boerner Van Dueren S.C. and also a member of the Business Court Advisory Committee, said lawyers should take greater advantage of the commercial dockets that are available when they have eligible cases.

    “It’s great to have judges who are aware of the types of issues that arise in business courts, the kinds of challenges – especially with wide-scale discovery, or sometimes temporary restraining orders or injunctions that are needed,” Brenner said.

    “The judges in the business courts are committed to having a basic knowledge of the types of issues that arise in business cases. That helps move things forward, and it also saves everybody money. This isn’t just for big business, it’s for small businesses too.”

    Commercial Docket Pilot Project Overview

    The Wisconsin Supreme Court, under then-Chief Justice Patience Roggensack, established the Commercial Docket Pilot Project in 2017.

    Joe Forward Joe Forward, Saint Louis Univ. School of Law 2010, is communications director for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6161.

    Initially, it served the seven counties in District Eight (Brown, Door, Kewaunee, Marinette, Oconto, Outagamie, and Waupaca counties), as well as Waukesha County. A number of circuit court judges were assigned to the Commercial Court docket.

    As of last week, Waukesha County’s Business Court has closed 56 cases, with 14 pending. The Eighth District’s Business Court has closed 28 cases, with 17 pending.

    These cases are part of the growing body of Business Court decisions that the supreme court is publishing on its Commercial Docket Pilot Project webpage, which also links to all the required forms that attorneys need to file eligible business court cases.

    Waukesha County and District Eight were initially selected for the pilot, on a three-year basis, in part based on their vicinity to commercial activity in the state.

    Certain cases filed in circuit court must be assigned to the commercial docket if that county is participating in the Commercial Docket Pilot Project. In other cases, the parties may jointly petition to have the case assigned to the commercial docket.

    The goals of the commercial docket are to: 1) improve the quality and predictability of justice in connection with business disputes; 2) improve parties’ access to justice; 3) make repeat disputes less likely to occur due to guidance provided by ongoing decisions; and 4) make Wisconsin a desirable forum for resolving business disputes.1

    Pilot Project Extended, Expanded

    In 2020, the supreme court extended the pilot project for another two years, to July 2022. In addition, the supreme court expanded the Commercial Docket Pilot Project to include Dane County, as well as the 14 northwestern counties within District Ten and the three counties within District Two (Walworth, Racine, and Kenosha).

    Likely because of the pandemic slowdown or lack of awareness among lawyers, only a handful of cases have come through t​he Business Courts in District Two and District Ten. Dane County’s Business Court has resolved 11 cases, with 13 pending.

    “The purpose of the court is to get business disputes with wide implications to people – employees, customers, other investors, other businesses – to get those cases quickly resolved because there’s such an economic and personal impact when they are not,” Judge Morrison said. “It’s often misunderstood that it’s something to just help business.

    “That’s not true at all. It’s a specialty court, like drug courts, mental health courts, OWI courts, and family courts,” Judge Morrison noted.

    Judge Morrison said judges designated to handle the business/commercial court docket have more specific business law experience and understand and appreciate the fallout effects that occur when business disputes are not resolved quickly.

    While business courts judges are currently sitting in designated counties or districts, Judge Morrison noted that the supreme court expanded the pilot project so that “[p]arties from counties that do not have a dedicated Commercial Court docket may petition to have their cases administered within a Commercial Court docket.”2

    The discretionary assignment of cases to the Commercial Court Docket is determined by the chief judge of the judicial administrative district in which the Commercial Court sits, based on a number of factors.​

    “We are getting high marks from the lawyers involved, that the judges get to these cases quickly, get results, and move forward,” Judge Morrison said. “In business, a fair result today is often more important than a perfect result four months from now.”

    Some Cases Must Go to Commercial Docket​

    As noted, some commercial cases are required to be assigned to the commercial docket in counties and districts participating in the Commercial Court Pilot Project.

    Attorneys should designate those cases at filing through the Civil Filing and Commercial Docket Cover Sheet. Those include:

    • Class Code 35001Internal Business Organizational Claims. Cases involving the governance or internal affairs of business organizations, including claims between or among owners or constituents of a business organization; claims against officers, directors, or managers of a business organization; claims involving the indemnity of owners, officers, directors, or managers of a business organization; claims involving the interpretation of the rights and obligations under the law governing the business organization, such as Wis. Stat. chapters 178, 179, 180, 181,183, 185, 214, 215, 221, 222, and 223 (or any similar statute or law from another jurisdiction); claims involving the interpretation of the rights and obligations under the agreements governing the business organization, such as the articles of incorporation, articles of organization, bylaws, operating agreements, membership agreement, or partnership agreement of the business organization;

    • Class Code 35002Prohibited Business Activity. Cases involving tortious or statutorily prohibited business activity, unfair competition, or antitrust, including claims under Wis. Stat. chapter 133; claims under Wis. Stat. section 100.30(5m) & (5r); claims under Wis. Stat. section 134.01; claims of tortious interference related to a business organization; claims involving restrictive covenants and agreements not to compete or solicit; claims involving confidentiality agreements;

    • Class Code 35003Business Sale/Consolidation/Merger. Cases involving the sale, consolidation, or merger of a business organization, conversion, share exchange, or the sale of substantially all of the assets of a business organization;

    • Class Code 35004Sale of Securities. Cases involving the sale of securities, including claims for securities fraud under Wis. Stat. chapter 551 or any similar statute or law from another jurisdiction;

    • Class Code 35005Intellectual Property Rights. Cases involving intellectual property rights, including claims to determine the use, ownership, or status of trademarks, trade secrets, or copyrights; claims under Wis. Stat. section 134.90; claims involving any agreement relating to the licensing of any intellectual property right, including patent rights;

    • Class Code 35006Franchisor/Franchisee Claim. Cases involving the relationship between a franchisor and franchisee or similar distribution relationship, including claims arising from Wis. Stat. chapter 135 or any similar statute from another jurisdiction; claims arising from Wis. Stat. section 134.93or any similar statute or law from another jurisdiction; claims arising from Wis. Stat. chapter 553 or any similar statute from another jurisdiction; and

    • Class Code 35007UCC Claims Greater Than $100,000. Cases involving claims or disputes under Wis. Stat. chapters 402, 403, 404, 405 and 409 (or any similar statute or law from another jurisdiction, that is, the Uniform Commercial Code) when the amount in controversy exceeds $100,000 in damages, exclusive of interest, costs and attorney fees.

    • Class Code 35008Receiverships Greater Than $250,000. Cases involving receiverships in excess of $250,000.

      • Class Code 35009 - Arbitration awardconfirm/compel/enforce. Cases involving confirmation of arbitration awards and compelling/enforcing arbitration awards.

      • Class Code 35010Commercial Real Estate Construction Greater Than $250,000. Cases involving commercial real estate construction disputes over $250,000.

    Judge Michael Aprahamian is a business court judge in the Waukesha County Circuit Court and also a member of the Business Court Advisory Committee.

    He shares an equal caseload with two other business court judges, Judge Michael Bohren and Judge William Domina.

    “The difficulty is that attorneys aren’t aware, or should be more aware, of the commercial court docket and the filing requirements for getting into the commercial court,” Judge Aprahamian said.

    If attorneys don’t designate the case as a commercial case eligible for the commercial docket, it may fall through the cracks and end up on the regular civil docket.

    Through additional training, Judge Aprahamian said the court clerks have been able to spot cases that should be designated for the commercial court docket, and judges in the participating circuit may order the case be transferred to the commercial docket.

    “But that’s been a challenge, and it’s been even more of a challenge since COVID hit,” he said. “Our numbers recently have been relatively low.”

    Judge Morrison said attorneys may not know they have a business dispute that qualifies for the commercial docket. He said attorneys should take time to visit the Commercial Docket Pilot Project webpage, and determine whether the case is eligible.

    “It’s easy to see whether or not your case falls within the mandatory business court classification. If you put the right number on the pleading, your work is done,” he said.

    “Any lawyer who has a case with very significant dollars or that arises in the commercial court context should be checking the rule to see.”

    Brenner said lawyers must get used to filing the cases correctly. “The courts and the administrators have made that simpler to do,” she said. “We are very used to doing it for other types of specialty cases. We just haven’t been doing it” in business cases.

    Educating law firm administrators on using the proper business court filing designations will help, Brenner said. “We also just need to get the word out to practitioners about the benefits, including written decisions by judges.”

    Again, the Commercial Docket Pilot Project webpage includes written decisions from business court judges that may be on point or relevant to an issue at hand.

    “Maybe it helps resolve disputes before they start,” Brenner said. “This has worked well in other states with business courts, and people have confidence bringing cases there. It’s going to be even more successful in Wisconsin. But we do have to get the word out.”

    Moving Forward

    The Commercial Docket Pilot Project will continue, at least until July of 2022. Judge Aprahamian said the supreme court will ultimately evaluate whether the commercial docket should be a permanent part of the Wisconsin Court System.

    “As part of this process, we have attended lots of conferences through the Business Court Judges Association and we have talked to other judges from other states about how they structure their business courts,” Judge Aprahamian said.

    “There’s lots of different ways that it’s being done. We have shared the information on the varying ways that we could structure it going forward if that’s the decision to do so.”

    Endnotes

    1 Hon. Michael Aprahamian, The Need for Speed: Commercial Court Open for Business, Wis. Lawyer (Jan. 2018).

    2 See Wisconsin Supreme Court Order No. 16-05A (Feb. 12, 2020).




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