Bloomberg Law
June 29, 2020, 8:01 AM

INSIGHT: Adjudicating Business Disputes in Delaware’s Complex Commercial Division

Gregory B. Williams
Gregory B. Williams
Fox Rothschild LLP
Wali W. Rushdan II
Wali W. Rushdan II
Fox Rothschild LLP

While the Delaware Superior Court has a long and distinguished history of adjudicating complex civil cases arising in law, the creation of the Complex Commercial Litigation Division (CCLD) 10 years ago increased Delaware’s capacity as a preferred forum to litigate complex business disputes of law.

Prior to the creation of the CCLD, all complex cases filed in the Delaware Superior Court were placed in the civil pipeline along with every other civil case. The benefits of designing a state court of law that focused exclusively on complex business disputes with streamlined case management procedures was manifest and, on May 1, 2010, the CCLD was created via administrative directive.

In recognition of the 10-year anniversary of the CCLD, this article highlights eligibility requirements, unique features, notable decisions, and strategic considerations for litigating in this unique forum.

Eligibility for CCLD Designation

Eligible cases CCLD designation may be established by demonstrating one or more of the following:

  • The amount in controversy is $1 million or greater;
  • The case involves an exclusive choice of court agreement or a judgment resulting from an exclusive choice agreement; and/or
  • The case is designated as a CCLD case by the president judge of the Superior Court, which can be done ex parte or upon request by one of the parties.

Additionally, parties seeking CCLD designation must consider that certain matters are ineligible for CCLD designation—including personal injury claims, mortgage foreclosure actions, mechanics liens actions, condemnation proceedings, and certain domestic and employment disputes.

Some Significant Procedures and Unique Features of CCLD

Generally, the procedures of the CCLD reflect a nuanced and thoughtful approach to complex case management resulting from the combination and implementation of some high performing operating procedures previously employed in the Delaware District Court, the Delaware Chancery Court, and others already in place in the Superior Court.

Below are some of the procedures and unique features for which the CCLD has become known during the last decade:

  • Speed and Efficiency: The CCLD judges are specifically selected for their experience and interest in sophisticated commercial disputes and complex case management. Once assigned to one of the CCLD panel judges, each case remains assigned to the same judge for all purposes through final disposition. Typically, this promotes speed and efficiency in the resolution of matters before the CCLD.
  • Early Case Management: Rule 16 scheduling conferences are held early in CCLD cases to discuss procedures for discovery (including electronic discovery), discovery disputes (including the ability for discovery disputes to be resolved by a commissioner or special master), and other topics related to the progression of the case through trial.
  • Firm Trial Dates: The parties have great flexibility to schedule trial on an expedited basis or to include additional time for more protracted discovery.
  • Bench or Jury Trial Procedures: Parties can choose whether to establish procedures for the conduct of the trial as a bench trial or a jury trial.
  • Full Briefing Without Leave of Court: Full briefing under Superior Court Civil Rule 107 is permitted without seeking leave of court. Contrast this with the common preference of numerous judges in Superior Court in non-CCLD cases requiring leave of court to depart from the six-page limit for motions and responses to motions set forth in Civil Rule 78(b).
  • Sample Orders: Sample case management orders, e-discovery guidelines, expert witness guidelines and sample jury instructions are all available on the CCLD’s website. These documents represent default standards that parties may adopt or modify by agreement.

Some Notable Decisions from CCLD

During its first decade, the CCLD panel judges have issued opinions in a number of areas of complex commercial law including but not limited to: (i) interpretation of purchase agreements; (ii) complex insurance coverage disputes; (iii) misappropriation of trade secrets; and (iv) negligent misrepresentation and fraud.

A few cases of note due to the significance of their final disposition and/or the procedures involved in adjudicating the cases include the following:

  • Incyte Corp. v. Flexus Biosciences Inc., C.A. No. N15C-09-055 MMJ [CCLD]: Multi-week jury trial on misappropriation of trade secrets claims. This was one of the largest cases tried to a verdict in the history of the CCLD.
  • Bracket Holding Corp. v. Express Scripts Inc., C.A. No. N15C-02-233 WCC [CCLD]: Mergers and acquisition dispute on a claim of fraud, resulting in an $82.1 million jury award following a two-week long trial.

Strategic Considerations

If you have a complex commercial litigation matter that you believe meets the threshold requirements for CCLD designation, keep the following three considerations in mind in determining whether to pursue the matter in the CCLD.

  • What Is/Are the Nature of Your Claim(s)? The CCLD was created to provide a Delaware state court venue for complex commercial claims at law. Accordingly, CCLD panel judges have been careful not to permit claims that sound in equity to proceed in the CCLD. When considering whether the CCLD is an appropriate venue for your matter, carefully analyze your claim(s) to determine if your claims would be recognized in Delaware as a claim at law or an equitable claim.
  • What Relief/Remedies Are Sought? As a court of law, the CCLD cannot award equitable remedies. Thus, carefully consider the desired strategic outcomes in your matter and whether they involve legal remedies, equitable remedies, or a combination thereof.
  • Do You Want a Jury to Decide Your Complex Commercial Case? Consider the strategic advantage in having a jury decide your complex commercial case versus a bench trial. While bench trials are available for complex commercial cases in both the Court of Chancery and the CCLD, a jury trial in state court on complex commercial matters is available in the CCLD. A jury trial is not available in the Court of Chancery.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Author Information

Gregory B. Williams is a partner and trial attorney in the Wilmington office of Fox Rothschild LLP who handles a range of commercial, intellectual property and business litigation matters.

Wali W. Rushdan II is an associate in the Wilmington office of Fox Rothschild LLP who handles a variety of litigation and transactional matters.

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