Instituted in 1999, the BLS provides a forum for business and commercial disputes which, because of their complexity, will benefit from individualized and collaborative case management. Examples of the types of cases litigated in the BLS are: shareholder derivative claims, disputes concerning intellectual property and trade secrets, suits to enforce restrictive covenants in employment agreements, business torts, claims arising from the sale of assets or corporate mergers, shareholder and consumer class actions, insurance coverage disputes, and other categories enumerated in Superior Court Administrative Directive No. 17-1.
The Business Litigation Session of the Superior Court (BLS) provides a forum for business and commercial disputes which, because of their complexity, will benefit from individualized and collaborative case management. The BLS consists of two full time sessions committed to the timely and efficient resolution of commercial disputes and other complex cases.
Categories of cases heard in the BLS include shareholder derivative claims, business torts, intellectual property and insurance coverage disputes, and claims arising from the sale of assets, corporate mergers, and restrictive covenants in employment agreements. The BLS also hears matters brought by the Attorney General on behalf of classes of consumers as well as actions brought by private parties alleging unfair and deceptive business practices.
The judges, all seasoned veterans of the Superior Court, are permanently assigned to the two sessions, and work together in teams of two, each judge sitting in the session for six months at a time. Judge Janet Sanders is the Administrative Justice of the BLS and is teamed with Judge Kenneth Salinger in BLS2. Judge Mitchell Kaplan and Judge Brian Davis share the BLS1 session. Each judge has the discretion to retain control over a case that needs close oversight and does so even when the judge is not sitting in the session itself. As a consequence of this continuity in assignment and management, litigants can be assured of consistency in judicial decision-making. BLS judges submit all of their decisions to a publicly accessible database so as to foster the development of a well-defined body of business law at the trial court level.
The BLS also has the advantage of a smaller caseload coupled with a dedicated court clerk for each session and a staff attorney. This allows for scheduling of motions on short notice, judicial responsiveness to discovery disputes, and timely, well-reasoned rulings on substantive matters.
Case management is an important goal of the BLS. Within a few months of the filing of the complaint, a judge will convene a litigation control conference and confer with counsel to craft a scheduling order for completion of discovery, filing of dispositive motions, and a final pretrial conference. Trial dates, once assigned, are firm, with the guarantee that the case will be reached on the date scheduled.
Conscious of the rising cost of litigation, the BLS has developed a discovery project which allows for automatic discovery without the need for specific requests for information. When disputes arise, they can be resolved by arranging for a teleconference with or immediate court appearance before the judge without the need for motion practice.
In addition, the BLS has adopted a procedural order regarding partial dispositive motions that requires parties to confer with each other and with the judge before they file any motions that will be only partially dispositive of the case. The purpose of the rule is to screen out those motions that do not narrow the issues for trial and consume resources without truly advancing the case toward resolution. Effective July 1, 2015, the moving party is required to file a Certificate of Compliance with the motion package that details the steps taken by the parties to comply with this procedural order.
In summary, the BLS provides consistency, predictability, and efficiency in areas of litigation where those qualities are particularly important.
Special rules regarding dispositive motions
Given the nature of the BLS caseload, dispositive motions – successful and otherwise – under Rules 12(b), 12(c), and 56 are a fact of life. Counsel are encouraged to examine carefully and realistically the prospects for success before serving and filing such motions, since they can be quite costly to litigants and time-consuming for the court.
In particular, counsel should be aware of the BLS Procedural Order Regarding Partially Dispositive Motions dated March 1, 2019 requiring leave of court for partially dispositive motions. Motions that are addressed to the disposition of some but not all of the claims or issues on behalf of or against a party in a case consume substantial amounts of the Court’s and the parties’ time and resources but often do not substantially reduce the length of the litigation or trial. No such partially dispositive motion shall be served until after a status conference with the Court, which will be scheduled by the clerk at the request of the moving party. Failure to request and attend a status conference as required by the procedural order is grounds for automatic denial of any partially dispositive motion. Moreover, a party filing any partially dispositive motion must include in the package of materials to be filed with the court a “Certificate of Compliance” expressly stating that this procedural order has been followed. Since two different BLS judges share each session, it is important for the parties to include the Certificate of Compliance with the motion package in the event that the judge ultimately hearing the partially dispositive motion is not the same judge who conducted the status conference allowing the parties to file such a motion. Failure to include a Certificate of Compliance is also grounds for automatic denial of any partially dispositive motion.
With respect to motions filed under Rule 56, counsel are strongly advised to take special care to comply with the requirements of Superior Court Rule 9A(b)(5) regarding the statement of facts and the record. Non-complying papers are apt to be returned. For a particularly good discussion of this rule and its importance to judges, see this article. The article recognizes that Superior Court Rule 9A(b)(5)’s “[only] purpose, quite simply, is to help the judge find his or her way around the record, as efficiently as possible.” Unnecessarily confusing, voluminous, or argumentative submissions are not helpful.
In any motion (summary judgment, preliminary injunction, etc.) with a particularly voluminous record, counsel are encouraged to supply electronic copies in PDF and Word format on a USB flash drive or DVD, with hyperlinked references in the briefs, proposed findings of fact, etc.
Where the briefs cite extensively to federal or other non-Massachusetts case law, statutes, or regulations, counsel are encouraged to supply copies (paper or electronic) with the motion papers.
For any BLS motion (dispositive or otherwise), a reply memorandum – but not a sur-reply – not exceeding ten pages is allowed without leave of court. See the BLS Procedural Order Regarding Reply Memoranda dated March 1, 2019, available here. Note that in the BLS, a reply memorandum of up to ten pages in length is permissible and that this differs from the five page limit set forth in Superior Court Rule 9A. To the extent that any party seeks to file a reply memorandum in the BLS exceeding ten pages in length, any sur-reply, or subsequent memorandum, the party must seek specific leave of court in the manner provided by Superior Court Rule 9A.
Finally, the BLS has a “Formal Guidance” document regarding Motions for Reconsideration (see Additional Resources).
|Last updated:||March 1, 2019|