
The 25th Anniversary of the Business Litigation Session: A Look Back
by Michael Tuteur and Jamie Steven
This year marks the 25th anniversary of the Business Litigation Session of the Massachusetts Superior Court (the “BLS”).[i] Instituted in 1999 as a separate civil session within the Suffolk County Superior Court, the BLS is one of the most significant judicial innovations in the Commonwealth’s modern legal history.
When the BLS’s architects first outlined their vision in the late 1990s, they had clear objectives in mind—a specialized session that could handle complex business litigation efficiently and expertly, thereby reducing the burden on the general court system and offering businesses a reliable and expeditious forum for resolving disputes.[ii] Upon opening in 2000, the court—presided over by Judge Allan van Gestel—was an almost immediate success, quickly becoming a “go-to” forum for business litigants able to bring cases in Suffolk County. During those initial years, the BLS became known for its speedy resolution of disputes (especially discovery and other interlocutory disputes), its informal (yet intensive) case management programs, and its steady release of opinions on key business law issues.[iii]
In a 2006 report, facing his “final” retirement from the bench, Judge van Gestel—often dubbed the session’s “founding father”[iv]—reflected on the BLS’s original goals and commented on what he perceived to be the biggest impediments to their achievement.[v] His forward-looking apprehensions were multifaceted, ranging from case management concerns, the resource shortages, and the possibility that judges would rotate through the BLS rather than be dedicated to it full-time. Many practitioners recall that these reflections did not receive a universally warm welcome from other judges (including those serving part-time in the BLS); and they responded to Judge van Gestel’s comments with a mild, if relatively thorough, rebuke.[vi] Nevertheless, practitioners and judges alike credited Judge van Gestel for his sincere questions about how well the BLS would function once its “founding father” retired.
Time, and the BLS, moved forward. The following years brought many substantial changes: an increased number of BLS-designated judges, an expansion of venue to business cases from around the Commonwealth, and more frequent rotation of judges into other sessions or retirement.
Over the next decades, the BLS maintained an estimable reputation among business litigators. That worthy reputation is a testament to it meeting the needs of the business community and suggests that some of Judge van Gestel’s early concerns for the court’s future may have been exaggerated. At the same time, however, while the BLS has consistently handled a significant number of cases annually, the census of cases applying for BLS admission in the last two decades has not increased materially (if at all). In some years, applications have even plateaued or declined. While this trend may simply reflect a natural limit to the demand for complex business resolution, it may also indicate more serious concerns. As the legal community justly celebrates the longevity and successes of the BLS, the trend in caseload prompts us to reflect on Judge van Gestel’s early concerns and ask whether they have been permanently resolved or still linger.
The Establishment of the BLS: Responding to a Changing Legal and Business Climate
The late 1990s brought a rapidly evolving legal and business environment to the Commonwealth. With the emerging ubiquity of personal computing and the internet, as well as the growth in venture capital and other investment vehicles, businesses increasingly found themselves in complex, high-stakes litigations involving intricate contractual disputes, intellectual property issues, non-competition covenants, and other still inchoate legal challenges. The Commonwealth’s trial courts—like other state court systems around the country—struggled to keep up with growing demand and the genuine need for specialized expertise.[vii] Delays, inconsistent rulings, and a lack of judicial business experience caused serious frustrations for businesses and attorneys alike, leading to real consequences for the existing court system.[viii] Among other things, more business litigators began turning to alternative dispute resolution services, such as arbitration.[ix] A short term result of the alternative dispute resolution (“ADR”) movement was a dearth of judicially crafted opinions addressing the new, complex topics. In the long term, these trends foretold the possibility that the Commonwealth would fail to develop a robust jurisprudence to guide businesses and attorneys on their most important issues.[x]
Against this backdrop, key legal figures in the Commonwealth advocated for a specialized business court that could address these challenges, similar to the specialization seen in Delaware, New York, and a handful of other states.[xi] These proponents had ambitious aims: they hoped to offer individualized and streamlined case management for complex business issues; expedite the resolution of both interlocutory and final litigation disputes; attract, train, and retain judges with expertise in business litigation; and curate the conditions that would result in the development of consistent and comprehensive business law jurisprudence.[xii] Their overarching goal was to make the Commonwealth a more attractive forum for business litigation when compared to the federal courts, other state courts, and private ADR.
In 2000, following five years of input from the bar, bench, legislature, and executive branch, then-Superior Court Chief Justice Suzanne DelVecchio announced a two-year pilot program in which a session of the Superior Court sitting in Suffolk County would be set aside for complex commercial litigation—with Judge Allan van Gestel presiding.[xiii] The BLS was born.
The Growth and Development of the BLS Over Its 25 Years
The BLS has experienced notable growth in its first 25 years—both in its operational capacity and in its reach within the Commonwealth. For the court’s first two years, Judge van Gestel was the only dedicated judge serving in the session.[xiv] In 2002, however, a second judge—Margot Botsford—joined the BLS, creating “BLS1” (the original session) and “BLS2.” Thereafter, Judge van Gestel presided over both sessions and sat in BLS1 full-time; in contrast, Judge Botsford was assigned to BLS2 part-time.[xv] In 2005, a second part-time judge was assigned to BLS2, expanding the BLS to two full-time sessions run by three judges. BLS1 continued to be run by a single permanently appointed full-time judge until 2011, when the Superior Court changed BLS1 to mirror BLS2, appointing two part-time judges to sit for six-month rotations. In the 13 years since, this has remained the model.[xvi] The BLS’s geographical reach has also expanded. Although initially limited to cases with proper venue in Suffolk County, in 2003 the Superior Court expanded venue to include Middlesex, Norfolk, and Essex counties.[xvii] In 2009 and 2017, the Superior Court further expanded the BLS’s reach to the entire Commonwealth, assuming no party challenged venue and the case otherwise merited adjudication by the BLS.[xviii]
The BLS has also taken strides towards its original mission. Most critically, the BLS has been at the forefront of developing rules and procedures focused on the needs of complex business litigation. These efforts have succeeded: today, the BLS is recognized for its emphasis on collaborative, interactive case management, and willingness to get intimately involved in all stages of a dispute.[xix] The bar has responded in kind; an informal survey reveals that, at the suggestion of business litigators, sophisticated corporate counsel in the Commonwealth have increasingly swapped out arbitration clauses for referrals to exclusive or parallel BLS jurisdiction in their “standard” agreements.[xx]
Plateauing Demand for the BLS: Is It Time to Reflect Again on Judge van Gestel’s Concerns?
Despite its expansion and increased accessibility, the BLS docket has not grown correspondingly. In fact, as noted, applications have largely plateaued. Since 2008, over 3,700 cases have applied, and the session has accepted over 3,200 of them.[xxi] The largest number of applications were filed in 2008 (295 cases), while the lowest occurred just four years later (175 cases).[xxii] Perhaps in response, the BLS’s acceptance rate jumped to 93% in 2012 (up from 75% the year prior), and continued to remain above 90% until reaching 98% in 2018. Over the past five years, the BLS’s acceptance rate has dropped a bit, though remaining at or near 90%. But the number of BLS applications has not grown: in fact, in 2022, applications dropped to their lowest census since 2012.[xxiii]
This plateau raises questions about the factors influencing the decision to seek admission into the BLS today,[xxiv] and prompts reflection on Judge van Gestel’s early concerns for the session’s future. It may be that demand has simply reached its natural limit. Alternatively, is it possible that the business community is again tacitly raising concerns about the efficiency and effectiveness of the BLS and courts at large, as Judge van Gestel feared it might? In his 2006 departing remarks, and again in a 2011 op-ed (the year preceding the BLS application low point), van Gestel highlighted the importance of establishing early firm trial dates, and sticking with them virtually at all costs.[xxv] The BLS has now moved away from that practice in favor of more customized trial dates based upon the progress and contours of pre-trial proceedings.[xxvi] Further, there is some anecdotal suggestion that that the time from commencement to resolution has increased in recent years, something the business community often finds unacceptable (and, to the business mind, inexplicable). Finally, van Gestel raised concerns about judicial consistency and predictability once BLS judges began to rotate in and out of the sessions. Could it be that the increased number of BLS judges, the bi-yearly rotation of these judges, and the apparent increase in judicial turnover (through retirement or promotion) have begun to undermine the predictability and consistency of rulings that businesses rely on?
These and similar questions may warrant reexamination as the BLS turns 25. The BLS has, at least in the authors’ view, achieved tremendous success and earned a first-rate reputation among business litigators throughout the Commonwealth. But just as in business, the BLS cannot rest on its laurels. Thus, while we laud the BLS’s achievements during its first quarter century, we also suggest that the legal community take this moment to reflect seriously on the session’s future. By more clearly identifying the modern challenges facing the BLS today, we can work to ensure that this unique session continues to succeed in the next 25 years and beyond.
Michael Tuteur is a partner at Foley & Lardner LLP, where he is an active member of the firm’s Business Litigation & Dispute Resolution practice group and its Government Enforcement Defense & Investigation practice group. He has extensive experience trying cases in civil and criminal courts around the country and in representing clients in high-stakes matters across a variety of industries, including matters involving complex commercial business disputes, government and internal investigations, scientific and research misconduct, and white-collar defense, to name a few. He has nearly 40 years of experience litigating cases in the Massachusetts Superior Court system and nearly 25 years of experience litigating cases in the Business Litigation Session subsequent to its 1999 establishment.
Jamie Steven is an associate at Foley & Lardner, where she is a member of the firm’s Business Litigation & Dispute Resolution practice group and its Government Enforcement Defense & Investigation practice group. She has experience representing clients in a wide range of complex commercial business litigation matters in the Massachusetts Superior Court system, the Business Litigation Session, and beyond. Her practice also involves representing health care and other regulated industry clients in the context of government investigations and other regulatory enforcement actions.
I. For those unfamiliar with the court, the BLS is a specialized forum located within the Massachusetts Superior Court system that is designed to handle complex commercial disputes. The judges serving on the court are selected for their experience with business and commercial law. As of this writing, the court operates two parallel sessions (BLS1 and BLS2), each of which is overseen by two judges who rotate in and out of the sessions every six months. Currently, Judges Peter Krupp and Hélène Kazanjian cover BLS1, and Judges Kenneth Salinger and Debra Squires-Lee cover BLS2. See About the Superior Court Business Litigation Session, Mass.gov, https://www.mass.gov/info-details/about-the-superior-court-business-litigation-session.
II. See Bus. Litig. Session Res. Comm., The Business Litigation Session in Massachusetts Superior Court: A Status Report (Feb. 2003), https://businesscourtsblog.com/wp-content/uploads/2019/01/Mass-2003-01545783xB05D9.pdf [hereinafter 2003 BLS Status Report]; Bus. Litig. Session Res. Comm., The Massachusetts Business Litigation Session: Docket and Caseload Analysis (Dec. 2004), https://businesscourtsblog.com/wp-content/uploads/2019/01/Mass-2004-01545784xB05D9.pdf [hereinafter 2004 BLS Status Report].
III. 2003 BLS Status Report, supra note 2; 2004 BLS Status Report, supra note 2; see also Lee Gesmer, Business Litigation Session Conference, Mass L. Blog (Oct. 10, 2005), https://www.masslawblog.com/business-lit-session/business-litigation-session-conference/ (“Judge [v]an Gestel has created a Superior Court jurisprudence in the BLS which gives an unprecedented level of predictability to Superior Court practice. A quick Westlaw search on ‘[v]an Gestel’ during the last five years results in over 250 written decisions.”).
IV. Judge Mitchell H. Kaplan, The Business Litigation Session Turns 15, Bos. Bar Ass’n (Jan. 7, 2015), https://bostonbar.org/journal/the-business-litigation-session-turns-15/; see also Gesmer, supra note 3 (“In the eyes of most business lawyers in Massachusetts Judge [v]an Gestel is synonymous with the BLS.”).
V. Hon. Allan van Gestel, The Business Litigation Session After Five Years (Feb. 6, 2006), https://graphics.boston.com/business/pdf/vangestel/memo.pdf [hereinafter van Gestel 2006 BLS Report].
VI. Hon. Margot Botsford, Hon. Nonnie S. Burnes, Hon. Ralph D. Gants, Hon. E. Susan Garsh, RE: Judge van Gestel’s Report on the Business Litigation Session of the Superior Court (Mar. 1, 2006), https://cache.boston.com/business/pdf/vangestel/response.pdf [hereinafter 2006 Judiciary Response to van Gestel BLS Report].
VII. Suzanne V. DelVecchio, The Birth of the Business Litigation Session, Laws. Wkly. (May 2, 2019), https://masslawyersweekly.com/2019/05/02/the-birth-of-the-business-litigation-session/ (remarking that in 1999, “the business community felt that its needs were not being met by the Superior Court, with business disputes randomly assigned to various room lists subject to time standards” and that “[t]hey pointed out that in jurisdictions where business courts existed, intellectual property issues were resolved quickly, as were other issues particular to businesses, such as covenants not to compete, etc.”).
VIII. According to a United States Chamber of Commerce survey conducted in 2001, Massachusetts consistently ranked in the bottom half of states in the perception of its ability to effectively handle business litigation: Massachusetts ranked 42nd in overall treatment of tort and contract litigation; 45th in timeliness of summary judgment decisions and dismissal of cases; 44th in juries’ predictability; 34th in juries’ fairness; 39th in efficiency of discovery; 37th in treatment of class action suits; 30th in judges’ impartiality; and 29th in judges’ competence. S. Harris Interactive, Inc., U.S. Chamber of Commerce State Liability Systems Ranking Study, Final Report at 19-20, 22-23, 25-28 (Jan. 11, 2002), https://courts.delaware.gov/superior/pdf/harris_2002.pdf; see also 2003 BLS Status Report, supra note 2, at 7; 2004 BLS Status Report, supra note 2, at 4.
IX. See 2003 BLS Status Report, supra note 2, at 1; 2004 BLS Status Report, supra note 2, at 7.
X. See 2003 BLS Status Report, supra note 2, at 1; 2004 BLS Status Report, supra note 2, at 7.
XI. 2003 BLS Status Report, supra note 2; 2004 BLS Status Report, supra note 2; see also Kaplan, supra note 4; DelVecchio, supra note 7.
XII. See 2003 BLS Status Report, supra note 2; 2004 BLS Status Report, supra note 2.
XIII. See The Birth of the Business Litigation Session, Laws. Wkly. (May 2, 2019), https://masslawyersweekly.com/2019/05/02/the-birth-of-the-business-litigation-session/; 2003 BLS Status Report, supra note 2, at 1, 8-10.
XIV. During this time, Judge Gordon L. Doerfer and Judge Nonnie S. Burnes served as “back-up” judges, handling cases that Judge van Gestel could not adjudicate due to substantive or scheduling conflicts. 2004 BLS Status Report, supra note 3, at 5.
XV. See van Gestel 2006 BLS Report, supra note 5, at 7-8; 2006 Judiciary Response to van Gestel BLS Report, supra note 6, at 2.
XVI. From its inception to the present, the following judges have sat in the BLS: Allan van Gestel (2000–2007), Margot Botsford (2002–2004, 2007), Christopher Muse (July 2003), Nonnie Burnes (2005), Ralph Gants (2005–2008), Susan Garsh (2006), Stephen Neel (2008–2010), Judith Fabricant (2008–2011), Margaret Hinkle (2009–2010), Peter Lauriat (2011–2012), Christine Roach (2011–2015), Janet Sanders (2011–2020), Thomas Billings (2012–2014), Mitchell Kaplan (2013–2019), Edward Leibensperger (2015–2017), Kenneth Salinger (2016–2024), Brian Davis (2018–2021), Karen Green (2020–2021), Michael Ricciuti (2021–2023), Peter Krupp (2022–2024), Hélène Kazanjian (2022–2024), and Debra Squires-Lee (2024–present).
XVII. The BLS’s venue was expanded to these counties pursuant to Superior Court Administrative Directive No. 03-1: Superior Court Business Litigation Session Extension and Expanded Venue. See Superior Court Business Litigation Session Expanded, Laws. Wkly. (May 5, 2003), https://masslawyersweekly.com/2003/05/05/superior-court-business-litigation-session-expanded/ (reciting Administrative Directive No. 03-1 in its entirety); Business Lit. Session Grows; New Counties Slow to Join, Mass. Laws. Wkly. (Mar. 31, 2003), https://masslawyersweekly.com/2003/03/31/business-litsession-grows-new-counties-slow-to-join/.
XVIII. Venue was expanded to all counties in the Commonwealth pursuant to Superior Court Administrative Directive No. 09-1. See BLS Directive to Go Into Effect, Laws. Wkly. (Jan. 12, 2009), https://masslawyersweekly.com/2009/01/12/bls-directive-to-go-into-effect/. In March 2017, that directive was rescinded and superseded by Superior Court Administrative Directive 17-1, which clarified how to go about transferring into the BLS from other sessions. This directive also explicitly granted the administrative justice of the BLS the power to transfer a case filed in Suffolk sua sponte to the BLS. This directive also revised the list of the types of cases that the BLS would accept. See Superior Court Revises Admin Directive of BLS, Mass. Laws. Wkly. (Feb. 24, 2017), https://masslawyersweekly.com/2017/02/24/superior-court-revises-admin-directive-of-bls/. Superior Court Administrative Directive 17-1 has recently been replaced by a new Superior Court Administrative Directive 24-1; however, the rules governing venue in the BLS have not changed. Superior Court Administrative Directive No. 24-1: Superior Court Business Litigation Sessions, Mass.gov (Apr. 4, 2024), https://www.mass.gov/superior-court-rules/superior-court-administrative-directive-no-24-1-superior-court-business-litigation-sessions.
XIX. For example, by deciding early case assessment requests, presiding over streamlined discovery negotiations, playing an active role in mediation or other early dispute resolution mechanisms, or offering judicial resolution panels rather than jury trials.
XX. See Hélène Kazanjian, Peter B. Krupp, Michael Ricciuti, Kenneth W. Salinger, BLS Bench Notes: MBA Complex Commercial Litigation Section, Bar Ass’n, at 30 (Apr. 2022), https://www.massbar.org/docs/default-source/publications-document-library/bls-bench-notes/bls-bench-notes—april-2022.pdf.
XXI. Based on an informal review of internal BLS records, in 2008, 295 cases applied to be in the BLS, and 281 were accepted. In 2009, 292 cases applied, and 191 were accepted. In 2010, 253 cases applied, and 163 were accepted. In 2011, 194 cases applied, and 146 were accepted. In 2012, 175 cases applied, and 163 were accepted. In 2013, 212 cases applied, and 192 were accepted. In 2014, 202 cases applied, and 181 were accepted. In 2015, 198 cases applied, and 185 were accepted. In 2016, 222 cases applied, and 215 were accepted. In 2017, 272 cases applied, and 264 were accepted. In 2018, 210 cases applied, and 205 were accepted. In 2019, 248 cases applied, and 235 were accepted. In 2020, 203 cases applied, and 188 were accepted. In 2021, 215 cases applied, and 189 were accepted. In 2022, 187 cases applied, and 167 were accepted. In 2023, 216 cases applied, and 195 were accepted. As of August 2024, 143 cases applied, and 117 were accepted. Note that starting in 2016, “Applied” also includes cases transferred to the BLS sua sponte.
XXII. This may have something to do with the fact that the BLS’s denial rate skyrocketed in the years immediately following the expansion of its jurisdictional reach to the entirety of the state (ranging from 25-36% of applications denied during 2009 to 2011), potentially discouraging litigants from seeking entry into the session.
XXIII. Although the pandemic may have contributed as well.
XXIV. Business Litigation Session (BLS) Bench Notes, gov (May 15, 2024), https://www.mass.gov/guide/business-litigation-session-bls-bench-notes.
XXV. See van Gestel 2006 BLS Report, supra note 5, at 8-9; Allan van Gestel, A Judge’s Cri do Coeur for the Business Litigation Session, Laws. Wkly. (Feb. 15, 2011), https://masslawyersweekly.com/2011/02/15/a-judge%e2%80%99s-cri-de-coeur-for-the-business-litigation-session/.
XXVI. The BLS Administrative Justice has articulated standards for accepting a case into the BLS. Business Litigation Session (BLS) Bench Notes, gov (May 15, 2024), https://www.mass.gov/guide/business-litigation-session-bls-bench-notes.