For several years, Spilman Thomas & Battle has been an active participant in the West Virginia Business Court Division (“BCD”). 

On September 25, 2012, we released an article discussing the key features of the new BCD.

An update was provided on January 31, 2013 regarding developments in our understanding of the BCD.

After two years of cases, the BCD’s leaders presented the following improvements to the West Virginia Supreme Court of Appeals (“WVSCA”) in a proposed amendment, which the WVSCA adopted: 

• First, Rule 29.02 of the West Virginia Trial Court Rules (“W.Va. T.C.R.”) was modified to eliminate the requirement that a judge have three years of experience as a sitting circuit judge before serving in the BCD.
• Second, the amendment codifies the concept of the “Resolution Judge,” or the BCD judge responsible for handling mediations or other alternative dispute resolution opportunities. Rule 29 now requires that a Resolution Judge be appointed alongside a “Presiding Judge,” or the judge who retains control and jurisdiction over the case. In addition to codifying the Resolution Judge, the amendment provides that the Resolution Judge will not communicate with the Presiding Judge regarding any aspects of the alternative dispute resolution in the case. This is an effort to “protect confidentiality of the mediation process."
• Third, to streamline the process and reduce costs to litigants, W.Va. T.C.R. 29.06 was modified to eliminate the requirement that litigants file the Motion to Refer a case to BCD with the circuit court, instead directing litigants to file the Motion to Refer with the Clerk of the WVSCA. A Motion to Refer shall also now be accompanied by: (1) a copy of the Complaint; (2) the answer to the Complaint; (3) a “docket sheet” from the case; and, (4) any other documents that support referral under Rule 29. Replies to the Motion to Refer must also be filed with the Clerk of the WVSCA. However, to ensure that the circuit court remains “in the loop,” litigants are required to serve the Motion to Refer on the clerk for the circuit in which the case is pending.
• Finally, W.Va. T.C.R. 29.06(a)(2) was modified to permit older cases to be filed in the BCD. Specifically, rather than limiting the BCD to cases which are only three months removed from the filing of the action, a Motion to Refer can now be filed “after the time to answer the complaint has expired.”

Spilman will continue to closely follow the development of the BCD, including the impact of these new amendments on the efficiency and disposition of cases before the BCD, and will provide more updates accordingly.