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WV Chamber hosts business court symposium

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The West Virginia Chamber of Commerce conducted its first business court symposium Jan. 22 to explore the implications of the newest addition to the court's family.

The business court division, which went live in October 2012, is not actually a separate court.

"This is not one of original jurisdiction. This is a separate docket within the circuit court system," said Rob Aliff, with the commercial litigation practice group with Jackson Kelly. "They all flow from motions to refer in the circuit courts."

Parties must file referral motions within three months from the time the suit is filed. However, a circuit judge can choose to refer the case at any time.

"They must set forth the nature of action that they want to refer to the business court, the basis for the request of referral and whether any other actions out there that they believe are either related to pending action or somehow consolidated to pending action," Aliff explained.

There are still questions whether cases that were filed before the business court's establishment could be referred.

"A case out there for a year may still be able to be referred," Aliff said, adding that parties would have to convince the judge that there is a good reason for referral.

Headquartered in Martinsburg, the business court is divided into seven regions. It will hear business-against-business disputes. Currently, there is one case before the business court division.

So what types of cases end up in this division? Well, to determine that, the court has a three-part test. First, Aliff said, the case must be a matter of "significance to transaction opportunities or governance between business entities."

The second part is the case must have commercial or technical issues requiring specialized treatment, Aliff explained.

The final part to this test, Aliff said, is that the business litigation does not include "consumer litigation, noncommercial insurance disputes, employee suits, consumer environmental actions, consumer malpractice actions, consumer and residential real estate, domestic relations, criminal cases, eminent domain or condemnation and administrative disputes with a government organization."

"Complex tax appeals are eligible to be transferred to the business court division," Aliff added. "There is no definition as to what a complex tax appeal is, but we will see. In my world, everything is a complex tax appeal, but I'm sure the Supreme Court won't view it that way."

Justice Robin Davis, the keynote speaker, added that the definition of complexity would be addressed case by case.

Christopher Wilkes, chief judge of the division, said there is a misconception that an individual cannot come before the business court.

He said individuals can come before the court as long as the case covers the internal workings of a business.

"We have a case in which an individual shareholder is suing other shareholders because of the internal workings," he said. "That is something for the business court."

Also, businesses could opt for a jury in the business court — although many at the symposium mentioned this is unlikely in most cases. If that did happen, jurors would first be pulled from the originating county and then from the business court region.

Speakers also noted that the circuit court case would not be stayed while the case is before the business court.

Parties still may seek preliminary injunctions or even a dismissal while the case is before the business court.

The division's goal is to resolve cases within 10 months from the date the initial case management document was filed.

Four judges have been appointed to serve seven year, staggered terms.

They are 11th Judicial Circuit Judge James Rowe (Greenbrier and Pocahontas counties), 24th Judicial Circuit Judge James Young Jr. (Wayne County) and  22nd Judicial Circuit Judge Donald Cookman (Hampshire, Hardy and Pendleton counties) to serve with 23rd Judicial Circuit Judge Christopher Wilkes (Berkeley, Jefferson and Morgan counties).

More judges may be appointed depending on the caseload of the business court, Davis said.  

Aliff explained that judges go through training and that any judge may be chosen as long as he or she meets one qualification.

"The only qualification is that they have three years of experience as a sitting circuit judge in West Virginia," he said. "It also does not set forth a particular obligation that judges have any business background, although what we're seeing is judges with particular business backgrounds are being identified."

Wilkes said the business court will be an important part for the state.

"The importance of a business court is that last year, the five largest verdicts in California were business versus business," he said.