Wednesday, May 5, 2010

A Brief Overview of the South Carolina Business Court Program

For various reasons, many corporate entities are created in Delaware. As a result, Delaware courts handle a large amount of complex business cases. Delaware’s Chancery Court is already well-known for its sophistication in handling commercial litigation, and its opinions are viewed favorably by other courts around the country.

For those faced with litigation in Delaware, its Superior Court has created a new business court to handle complex commercial litigation, effective May 1, 2010. The Complex Commercial Litigation Division promises to be a new source of leading authority on business litigation matters. A copy of the directive creating the business court can be found here.

South Carolina launched a similar Business Court Pilot Program in September of 2007. The Business Court is designed to handle complex business, corporate, and commercial matters. The program is currently available in Charleston, Richland, and Greenville Counties. Judges Young, Childs, and Miller serve these respective counties as business court judges.

In order to bring a case into the Business Court Pilot Program, the principal claims must fall into one of the following areas:

Title 33—South Carolina Business Corporation Act of 1988;

Title 35—South Carolina Uniform Securities Act of 2005;

Title 36, Chapter 8—South Carolina Uniform Commercial Code: Investment Securities;

Title 39, Chapter 3—Trade and Commerce: Trusts, Monopolies, and Restraints of Trade;

Title 39, Chapter 8—Trade and Commerce: The South Carolina Trade Secrets Act;

Title 39, Chapter 15—Trade and Commerce: Labels and Trademarks; or,

Such other cases as the Chief Justice may determine.

Although commercial contract disputes do not automatically fall within one of the six enumerated statutory schemes, those cases may be appropriate for the program based upon the Chief Justice’s discretion. In such cases, it is helpful to prepare a brief description of the lawsuit in order to demonstrate why the matter should be assigned to Business Court.

You must move to bring the case into Business Court within 180 days after the commencement of the case. Consent by all parties is not required. If the circuit court finds that Business Court assignment is proper, the matter must be approved by the Chief Justice. Orders assigning the case to Business Court are executed by the Chief Justice.

Managing a case within the Business Court brings several advantages. First, the Chief Justice encourages the use of technology to facilitate complex litigation. Second, like a complex case designation, the case is assigned to one judge throughout the life of the action, which enables the parties to conduct discovery and address complex motions under the watch of a judge who is familiar with the case and the issues presented in complex business litigation. Third, Business Court cases are provided preferential docketing status to help move complex cases along where possible.

More information on South Carolina’s Business Court Pilot Program, including helpful forms, can be found here.