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11th Circuit creates complex business litigation section

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11th Circuit creates complex business litigation section


Mark D. Killian
Managing Editor

Complex business litigation cases will have a new home in the 11th Circuit beginning this month.

Chief Judge Joseph Farina issued an administrative order recently creating a Complex Business Litigation Section within the General Jurisdiction Division of the court, fulfilling a decade-old quest of the Bar’s Business Law Section.

Veteran Circuit Judge Gill Freeman, a commercial litigator before coming to the bench, will begin hearing complex business cases in the new court January 8.

In the administrative order creating the new court, Judge Farina said the nature and volume of business litigation cases filed in the 11th Circuit warranted the creation of the new section.

“The concept of having a business court in Miami has been discussed and pushed for about 10 years now,” said Michael Higer of Aventura, a Business Law Section member and chair of the 11th Circuit’s Ad Hoc Committee on Business Litigation, which assisted in drafting the administrative order and the rules for the new court. He said Judge Farina has been receptive to the section’s push for a business court for years, but didn’t have judicial resources needed to create the Complex Business Litigation Section until now.

Higer said the Business Law Section’s studies have found that when judges are focused on just complex business cases they are “more proficient and efficient.” He said while complex business law cases make up a small percentage cases in the civil division, they can command a great deal of the court’s time. He also said many judges are not “up to speed” on the latest trade secrets or some other area of the law involved in complex business litigation because it is not an area of the law they deal with every day.

“pulling those cases out, it is really a win-win because the judges who are now handling the main population of cases, they don’t have these cases bogging them down and they are able to handle the other cases faster and more efficiently,” Higer said.

The 11th Circuit now joins the Ninth Circuit in having a dedicated business litigation court. The Ninth Circuit’s court has been in operation for three years.

Business Law Section member Jim B. Murphy of Tampa also anticipates the establishment of a complex business litigation section in the 13th Circuit in the near future.

“I was advised by the administrative judge for the General Civil Division. . . that the chief judge had approved going forward with a complex business litigation subdivision or section in our court here and there should be an administrative order entered within the next few days,” Murphy said.

(That order had not been entered as this News went to press.)

Murphy said the 13th Circuit committee studying the concept of a business litigation section — which he is a member of — has been working on the project for the past two years.

“I think the word is getting out that these can be very effective and efficient means of disposing of these types of complex cases involving business issues,” Murphy said. “We are all thrilled about it.”

Higer said business courts are also now being considered in Broward and Palm Beach counties, and New York has had such courts for some time.

The new 11th Circuit court will hear matters in controversy exceeding $75,000 — exclusive of interest, costs, and attorneys’ fees, in the following areas:

• Breach of contract actions, including a claim involving an employment agreement (except a claim primarily based upon allegations of discrimination) or a partnership, shareholder, joint venture, or other business arrangement;

• Actions asserting a business tort, such as a claim for breach of fiduciary duty, fraud, misrepresentation, unfair competition, and the like;

• Actions based on a statutory or common law violation where the breach or violation is alleged to arise out of business dealing;

• Actions asserting a claim arising under the U.C.C., including a claim involving the sale of goods or services by or to a business enterprise;

• Actions involving the purchase, sale, or restructuring of a business or the purchase or sale of the stock, assets, or liabilities of a business;

• Actions relating to a surety bond;

• Actions arising from a franchisee/franchisor relationship and associated liabilities;

• Insurance coverage disputes, bad faith suits, or third party indemnity actions against an insurer arising under a policy issued to a business, such as a claim arising under a commercial general liability policy or commercial property policy;

• Actions under the Uniform Fraudulent Transfer Act — except proceedings supplementary in a case assigned to another division.

• Actions under the Florida Deceptive and Unfair Trade Practices Act;

• Construction defect cases not primarily based upon a claim of personal injury;

• Cases that are appropriately transferred to the Complex Business Litigation Section; and

• Any of the following without regard to the amount in controversy: actions relating to trade secrets or noncompete agreements; actions involving the dissolution of a business entity or an assignment for the benefit of creditors; actions asserting an intellectual property claim; actions involving securities or asserting a claim under a state or other securities law; actions under a state or other antitrust law; and a shareholder derivative action or other action relating to director and officer liability or a corporate governance issue.

The following types of matters will not be assigned to the Complex Business Litigation Section absent special circumstances: matters involving occupational health or safety; environmental claims which do not involve the sale or disposition of a business or coverage dispute; matters in eminent domain; employment law cases; an administrative agency, tax, zoning, or other appeal; matters required by statute or other law to be heard in some other court or court division; and cases that are appropriately transferred out of the Complex Business Litigation Section.

There are also provisions that will allow parties to object to having their cases heard in the new Complex Business Litigation Section.

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