The Wisconsin Supreme Court established a Commercial Docket Pilot Project in 2017 to address certain types of commercial disputes in Wisconsin. Other states, such as Delaware, use a commercial court docket to streamline business disputes that affect employers, employees, vendors, and other entities and individuals up and down the commercial stream.

The commercial court docket, sometimes called business courts, also allows Wisconsin to develop a consistent body of law to guide businesses as they navigate their legal disputes. Tapping judges specifically trained and experienced in resolving commercial disputes allows cases to be resolved more expeditiously. Some may not agree with the concept of a commercial court docket. But other specialty courts have proven to work well in our state, and the business courts are working as intended: commercial docket judges are moving things along more efficiently, because of their experience and training. Quicker resolutions provide more stability for businesses and workers.

The Wisconsin Supreme Court recently expanded the Commercial Court Pilot Project, and lawyers should familiarize themselves with the rules to ensure their business disputes are filed properly in counties with commercial dockets. This article outlines the recent expansions and provides a brief update on how the Commercial Court Dockets are going.

History of the Commercial Docket

On April 11, 2017, the Wisconsin Supreme Court entered an order¹ creating the Commercial Docket Pilot Project. The order formally granted a petition filed by the Business Court Advisory Committee appointed by Chief Justice Patience Roggensack in August 2016² seeking the creation of a specialty court, with the purpose of having dedicated circuit court judicial dockets for large-claim commercial cases.

The pilot began on July 1, 2017. In January 2018, I wrote an article for Wisconsin Lawyer explaining the docket’s creation, the nature of a business court, the types of cases then assigned to the commercial docket, the initial locations from which cases to the commercial docket were assigned, and the judges initially assigned to the pilot.³ The pilot has operated for four years and its scope has expanded significantly during that time.

Expanding Cases Assigned to the Commercial Docket

The first expansion of the pilot added more types of cases. At its inception, cases assigned to the commercial docket were those involving the following: internal business organizational claims; prohibited business activity; business sale, consolidation, or merger; sales of securities; intellectual property rights; franchisor-franchisee claims; or Uniform Commercial Code claims greater than $100,000.

In 2018, the committee received informal requests to expand the pilot. Based on those requests and the experience of the judges assigned to the pilot, the supreme court ultimately approved expanding the commercial docket to include three additional types of cases:

• Case Code 35008 – Receiverships Greater Than $250,000. Cases involving receiverships in excess of $250,000;

• Case Code 35009 – Arbitration award – confirm/compel/enforce. Cases involving confirmation of arbitration awards and compelling or enforcing arbitration; and

• Case Code 35010 – Commercial Real Estate Construction Greater Than $250,000. Cases involving commercial real estate construction disputes over $250,000.

Expanding the Locations and Courts Comprising the Commercial Docket

On Feb. 12, 2020, the supreme court entered an order approving the committee’s petition to extend the pilot’s term and add more regions of the state.⁴ The new order extended the pilot an additional two years to July 2022. (The pilot originally was set to expire in July 2020.)

The order also expanded the courts and locations comprising the commercial docket. Originally, the docket consisted of Waukesha County Circuit Court and the circuit courts within the Eighth Judicial Administrative District (that is, the circuit courts surrounding Green Bay, including Brown, Door, Kewaunee, Marinette, Oconto, Outagamie, and Waupaca counties). The new order expanded the locations to include the circuit courts in the Second Judicial Administrative District (Kenosha, Racine, and Walworth) and the Tenth Judicial Administrative District (Ashland, Barron, Bayfield, Burnett, Chippewa, Douglas, Dunn, Eau Claire, Iron, Polk, Rusk, St. Croix, Sawyer, and Washburn).

The supreme court also created an interim commercial court rule that allows parties in cases currently pending in circuit courts that are not part of the pilot to petition to have their cases assigned to the commercial docket. The interim rule requires that the parties jointly petition for transfer of the case to the commercial docket. It also requires that 1) the case be one that would otherwise qualify as a case assigned to the pilot; 2) the parties agree to use the forms and procedures developed for the commercial docket; and 3) the parties agree that all proceedings will be conducted in the county where the case is assigned (that is, where the assigned commercial court judge presides over cases), except that if the case proceeds to trial, the assigned commercial court judge will conduct the trial in the county where the case originally was filed or venued. Even if all these requirements are met, assignment to the commercial docket is discretionary, and the chief judge of any of the judicial administrative districts within the pilot can deny the petition based on the caseload of the judges assigned to the pilot.

The supreme court later entered an order expanding the commercial docket to include the Dane County Circuit Court and amended the discretionary transfer rule to include Dane County and consideration of a transfer request by the chief judge of the Fifth Judicial Administrative District.⁵

The judges currently assigned to the pilot are Jon Fredrickson (Racine), Eugene Gasiorkiewicz (Racine), David Reddy (Walworth), and David P. Wilk (Kenosha) from the Second Judicial Administrative District; Tammy Jo Hock (Brown), Michael Judge (Oconto), Mark McGinnis (Outagamie), and James Morrison (Marinette) from the Eighth Judicial Administrative District; Scott Nordstrand (St. Croix), Michael Schumacher (Eau Claire), and Michael Waterman (St. Croix) from the Tenth Judicial Administrative District; Valerie L. Bailey-Rihn, Julie Genovese, and Frank Remington (Dane); and Michael Aprahamian, Michael Bohren, and William Domina (Waukesha).

Progress Report

Many attorneys are unaware of the pilot or unclear on the process for filing a case assigned to it. Since 2017, members of the committee have given multiple presentations to various bar organizations to familiarize attorneys with the pilot and its requirements. Anecdotal information suggests that commercial docket cases in Waukesha County were filed at a steady pace until the COVID-19 pandemic began in the United States and many businesses and courts closed or began operating virtually, when the filings tended to tail off. This decline is likely consistent with the drop in case filings generally, particularly large civil cases.

The committee, with the assistance of the judges assigned to the commercial docket, court operations, and the Director of State Courts, monitors the pilot and provides progress reports to the supreme court. The district court administrator for the Eighth Judicial Administrative District tracks the statistics associated with the operation of the pilot. The accompanying charts report data as of Nov. 4, 2021. The single largest category of cases is prohibited business activity, which includes employee noncompetition agreements and litigation. (See the accompanying chart: Number of Cases by Class Code.)

When established, the pilot’s goal was to resolve cases within 12-18 months. The data evidences that the judges in the pilot have been processing and prioritizing the matters to ensure a relatively prompt resolution. (See the accompanying chart: Time to Disposition.)

Feedback

A key component in assessing the pilot’s progress is the level of litigant satisfaction. Every litigant with a case in the commercial docket has been asked to fill out a survey about the process. The results to date have been generally positive, particularly when one considers that every issue or motion decided by a court has a winner and a loser (with a potential axe to grind). Final survey results will be included in the report submitted to the supreme court.

Information about the Commercial Docket

The Wisconsin Court System website has a page dedicated to the commercial docket. It includes links to the various Supreme Court Orders and Interim Rules and to the required forms and “published” decisions from cases assigned to the commercial docket.⁶

Conclusion

As the pilot’s fifth year approaches, the pilot has expanded significantly. Absent another extension, the committee will soon prepare a final progress report and recommendation on the future of a specialty commercial court docket in Wisconsin. The committee seeks lawyers’ feedback. Please think about the following questions and send your thoughts to the committee.

• Should a specialty commercial court docket be statewide?

• If the docket is statewide, should it be organized by Judicial Administrative Districts or some other way?

• Should the docket include the case types currently assigned to the pilot, or only certain of them, or other case types entirely?

The committee and the judges assigned to preside over cases in the commercial docket welcome lawyers’ feedback and input on how the docket could be improved and what a permanent commercial docket might look like going forward. Please provide your feedback to Laura Brenner, at lbrenner@reinhartlaw.com.

Endnotes

¹ Wis. Supreme Ct. Order No. 16-05, In re creation of a pilot project for dedicated trial court judicial dockets for large claim business and commercial cases, 2017 WI 33.

² The Business Court Advisory Committee was comprised of the following: chair, John Rothstein, Quarles & Brady; Judge James Morrison of Marinette County and Chief Judge of the Eighth Judicial District; Judge Michael Fitzpatrick of Rock County (and now judge of the court of appeals); Michael Brennan of Gass Weber Mullins (now a judge of the U.S. Court of Appeals for the Seventh Circuit); Laura Brenner of Reinhart Boerner Van Deuren; Nora Gierke of Gierke Frank Noorlander LLC; Lon Roberts, Secretary of the Wisconsin Department of Financial Institutions (and later chair of the Public Service Commission); and the author.

³ Michael J. Aprahamian, The Need for Speed: Commercial Court Open for Business, Wis. Law. (Jan. 2018).

⁴ Wis. Supreme Ct. Order No. 16-05A and Correction Order 16-05B, In re creation of a pilot project for dedicated trial court judicial dockets for large claim business and commercial cases.

⁵ Wis. Supreme Ct. Order No. 16-05C, In re creation of a pilot project for dedicated trial court judicial dockets for large claim business and commercial cases.

⁶See Wis. Ct. Sys., Services for Attorneys, www.wicourts.gov/services/attorney/comcourtpilot.htm (last updated Oct. 15, 2021).

» Cite this article: 94 Wis. Law. 45-48 (December 2021).