Is Commercial Court a Better Place to Resolve Your Dispute?

Is Commercial Court a Better Place to Resolve Your Dispute?

This summer, Indiana created a new court system designed for business disputes. The Indiana Commercial Courts are now “open for business.” Indiana is the 23rd state to create special business courts over the last 20 years or so. Our neighbors Illinois, Ohio, and Michigan already have similar courts.

The idea is to have business disputes handled by a small number of judges who are both (a) focused on business issues, rather than juggling a variety of family law or criminal law matters, and (b) using special rules and procedures designed to speed up the resolution of each case.

Commercial Court judges are encouraged to be very active and involved in managing deadlines, keeping close tabs on the progress of discovery (the exchange of facts), and making themselves available on short notice for hearings to keep things moving along.  Judges are also encouraged to engage outside experts to serve, if the parties agree, like “Masters” for a particular case. Commercial Court Masters can handle day-to-day issues that may arise regarding discovery, accounting, computer discovery, or other technical issues.

What kinds of disputes qualify for Commercial Court? Only cases that were filed after June 1, 2016, involve businesses or business owners on both sides and involve a contract dispute, non-compete agreement, trade secrets, sales transaction, franchise agreement, ownership/control of a business, or similar business disputes.

The primary goal is to speed things up. Studies confirm what every business manager knows: the longer a case drags on, the more is spent in legal fees. Given that most business disputes are ultimately settled at mediation or through negotiation, the idea is to get there faster. If you speed up discovery, decision-makers on both sides can more quickly understand all of the facts and then evaluate and resolve the case.

One feature that may help the speed and quality of decisions is a special budget earmarked to hire four new law clerks to assist the six Commercial Court judges. Adding this research support should help the judges rule more quickly and accurately on motions.

At least for now, this whole process is voluntary. Both parties have to agree to have a case handled by Commercial Court.  Otherwise, it will just proceed through the standard state-court assignment and case-handling.

Which leads to the question: Should you agree to move your new business case to Commercial Court? Our law firm is encouraging our business clients to do so, or at least give it serious thought. Most of our litigation attorneys are licensed in both Indiana and Michigan, and we have had some favorable experiences with Michigan’s similar Business Court process. In our experience, cases do move more quickly in Business Court.

Not every Indiana business case is suited for Commercial Court. But you should talk with your lawyer about it. The decision could lead to a better result in your case, and you might save both time and money.

For more information about Indiana’s Commercial Courts, visit the Indiana Judicial Center’s site: http://www.in.gov/judiciary/center/2944.htm

James (Jay) M. Lewis, Certified Mediator, Trial Lawyer, Partner, Tuesley Hall Konopa,LLP

Author: Partner, James (Jay) M. Lewis, is a business and civil litigation attorney at Tuesley Hall Konopa, LLP. Jay counsels business clients on employment-related matters. He is also a certified mediator and is licensed to practice in Indiana and Michigan.

You can contact Jay by calling 574.232.3538 or by email jlewis@thklaw.com

Disclaimer: The THK Legal Blog is for informational purposes only and should not be relied upon as legal advice. In no case does the published material constitute an exhaustive legal study, and applicability to a particular situation depends upon an investigation of specific facts. You should consult an attorney for advice regarding your individual situation.
The ABLE Act Explained

The ABLE Act Explained

Achieving a Better Life Experience — The ABLE Act Explained

On March 21, 2016, Governor Pence signed the ABLE Act, authorizing legislation into law in Indiana. Similar legislation went into effect in Michigan last October. While neither state has ABLE account programs up and running at this point, we anticipate them being available by the end of the year. In addition, Federal law now allows an Indiana or Michigan resident to establish an ABLE account in any state that has a program available. Several states, including Ohio, do have programs that are open and available for investment.

What follows is an explanation of ABLE accounts that we circulated shortly after the passage of the Federal law creating ABLE accounts that provides an overview of what these accounts are and how they can be used.

With a new law passed by Congress and signed by the President late last year, we now have a new tool available to help increase the independence of those with special needs. ABLE accounts have been a topic of conversation for many years and, now that they are a reality, we need to take a closer look at what this law actually created and how they fit into a larger plan. If you have been following the ABLE Act discussions over the years, you may find some surprises in the rules that were actually enacted.

ABLE accounts are derivative of the 529 education accounts that you may already be familiar with and use. Similar to 529 accounts, ABLE accounts are tax-free savings devices, so long as they are funded and distributed according to a strict set of rules. Here are the basic rules for an ABLE Account:

  • The beneficiary must have become disabled prior to age 26.
  • Each beneficiary may have only one ABLE account.
  • Only $14,000 of gifts may be made to an ABLE account per year (this number may be adjusted annually).
  • If the beneficiary receives Supplemental Security Income (SSI), the account balance may not
    exceed $100,000.
  • An ABLE account must be established via a provider authorized by the state of the beneficiary’s residence.
  • Any funds remaining in the account at the death of the beneficiary must be repaid to the state of residence to the extent benefits have been relieved from the state.
  • Funds from an ABLE account may only be spent on qualified disability expenses.

That last requirement is a major change from all of the past ABLE proposals and can significantly limit the usefulness of these accounts. Congress provided a rather narrow definition of qualified disability expenses. For example, housing, transportation, and medical expenses are allowed. Clothing, food, and other personal expenses are not. Any distribution not made for qualified disability expenses will be subject to income tax, a 10% penalty, and cause the entire balance of the account to be a countable asset for SSI and Medicaid purposes.

For competent beneficiaries, ABLE accounts can provide some degree of independence and self-determination. The beneficiary can control the account and can make distributions to him or herself, so long as they are for qualified expenses. For many beneficiaries, the ability to use ABLE funds for housing and transportation can free up their small SSI check for non-qualified uses such as food and clothing and reduce the beneficiary’s dependence on a trustee.

It’s important to note that ABLE accounts are not meant to replace special needs trusts and other estate planning. While special needs trusts do require trustees, they have far more flexibility in making distributions for expenses other than qualified disability expenses. Also, in the case of funds being contributed by parents, grandparents, and other third parties, special needs trusts would not require payback to the state at a beneficiary’s death.

As of the writing of this piece, neither Indiana nor Michigan had announced plans to begin implementing ABLE accounts. However, we expect these new accounts to be administered by many of the same companies as 529 accounts.

Incorporating an ABLE account into your overall special needs plan can add some flexibility into the plan and ABLE accounts can be a useful tool for planning in some circumstances. But, they should be used carefully and with full knowledge of the requirements involved.

For information about how they can work with your estate plan to benefit your special needs family member, contact one of our estate planning attorneys at (574) 232-3538.

Author: Jennifer L. VanderVeen is a certified elder law attorney (CELA) at Tuesley Hall Konopa, LLP where she counsels clients on long term care planning, Medicare, Medicaid, veterans benefits applications, guardianships, special needs trusts, and complex estate planning issues. Jennifer frequently speaks to community groups on caregiver responsibilities and caregiver burnout.

You can contact Jennifer by calling 574.232.3538 or by email jvanderveen@thklaw.com.

Disclaimer: The THK Legal Blog is for informational purposes only and should not be relied upon as legal advice. In no case does the published material constitute an exhaustive legal study, and applicability to a particular situation depends upon an investigation of specific facts. You should consult an attorney for advice regarding your individual situation.