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BY PAMELA LANGHAM, ESQ.

Since the 1990s states across the country have increasingly organized specialized “business” courts. Some have unique docket tracks, specialized rules of procedure, separate divisions of court or a separate court at the civil trial level. All business courts are primarily designed to provide efficient and convenient case management and disposition to external (commercial dispute) and internal (shareholder dispute) litigation involving business entities.

THE GENERAL ASSEMBLY of Maryland established the Maryland Business and Technology Task Force to examine whether Maryland should establish a specialized business and technology court within Maryland’s circuit court system in 2001. Rule 16-205 was adopted by the Maryland Court of Appeals to establish a business and technology case management program to enable each circuit court to handle business and technology matters in a coordinated, efficient, and responsive manner and to afford convenient access to lawyers and litigants in business and technology matters upon recommendation of the task force.

The Maryland Business and Technology Case Management Program (BTCMP) is governed by the Committee on Complex Litigation under the Conference of Circuit Judges. The Committee’s charge includes all complex litigation, except asbestos, with the initial focus on business and technology litigation. The current rule governing the Business and Technology Case Management Program is Rule 16-308. The rule establishes a program track for business and technology cases with its own case management system, a unique procedure, judges who are mostly specially trained in business and technology and ADR proceedings conducted by specially trained mediators. The rules allow a circuit court judge for a particular county to sit as a program judge for another county in a different circuit. The new rule also provides types of cases that are presumptively included and types of cases that are presumptively excluded.

How May a Party Be Assigned to the Business and Technology Case Management Program?

The rule provides that a party may be assigned to the specialized court upon written request or on the court’s own initiation if the “judge determines that the action presents commercial or technological issues of such a complex or novel nature that specialized treatment is likely to improve the administration of justice.” Rule 16-308(c)(1). The rule also sets forth the factors each County Court Administrative Judge may consider in making a determination to assign the case to the program.  The critical factor is “whether business or technology issues predominate over other issues presented in the action.” Id. The rule also provides that some types of cases are presumptively assigned to or excluded from the business technology program.

Causes of action that are presumptively assigned to the program include, but are not limited to claims under the Maryland Antitrust Act, the Maryland Securities Act if involving unusual complexity, claims involving the affairs and internal governance of business entities, stockholder derivative actions, stockholder or commercial class actions or cases that involve technical issues of significant complexity. Rule 16- 308(c)(2). Some claims involving breach of contract, fraud, trade secrets, non-compete agreements, and business torts are presumptively assigned “if they involve unusual complexity.” Id. Causes of action that are presumptively excluded from the program include, but are not limited to personal injury, wrongful death, medical malpractice, landlord-tenant, professional fee and malpractice disputes, employer-employee disputes, and criminal matters. Rule 16-308(c)(3).

Work Group

A Work Group was organized and is advisory in nature. The Work Group provides input from members of the bench and bar who litigate business and technology cases before the circuit courts. The Work Group is authorized to provide recommendations for both successful practices and problem areas for the Complex Litigation Committee’s consideration. Many attorneys practicing commercial law believe removing complex business and technological cases from the regular docket will allow the specialized judges in the program to concentrate on the complexities of the issues and allow the other judges to focus their attention on other less complex legal matters. Eric Orlinsky at the firm Saul, Ewing, Arnstein & Lehr, LLP, and one of the founding fathers of the business and technology court in Maryland stated, “research and evidence demonstrates that business cases litigated in a specialized court quickly resolve contributing to the efficiency of the court system.”

Other noted figures that have contributed greatly to the creation and success of the program include James Hanks, Jr., partner at Venable, LLC; Judge Fletcher Hill who has led the charge in Baltimore City; Judge Sean Wallace who is the current chair of the Committee on Complex Litigation; Judge Ronald B. Rubin (Ret.) who has been involved since 2002, first as a practitioner and later as a judge; and Judge Michelle Harner who provided an impetus for the program when she was a professor at the University of Maryland Law School.

Judges and Mediator Certification

The current Business and Technology Judges presiding over cases in the program are published on the BTCMP website. Judge Rubin stated that most judges in the business technology program are proactive and so the cases move sooner rather than later. Judge Rubin noted that one of the advantages of the program is that cases “begin and end with the same judge so the parties have continuity and certainty.” He understands, as well as all judges in the program, that businesses do not want inaction in litigation. The business technology program provides certainty and an expedited litigation schedule so that “businesses can make business decisions and not get stuck in the legal system,” he said. Mediators assigned to program cases must meet specific qualifications that are set forth in Maryland Rule 17-205(b). By training specialized mediators, proponents of the program believe the court system will reap benefits from a higher rate of settlement of business and technology disputes. Qualified mediators are also published on the BTCMP website.

Written Opinions of the Court

The BTCMP website also publishes opinions from remarkable cases of particular interest to the business and technology community or other business and technological issues. The BTCMP opinion database may be accessed here. The database provides lawyers and judges with a growing body of case law and is extremely beneficial for attorneys practicing within the specialized track. However, the trial court opinions are not considered to be precedent. The BTCMP wants corporations and businesses to know that the business and technology court is open for business and ready to serve business entities in the state of Maryland. The bench has been working hard in preparation and just concluded a two-day boot camp to educate the presiding judges in the program.