USA – TEXAS Trends and Developments Contributed by: Darryl Anderson, Carlos Rainer, Geraldine Young and Abraham Chang, Norton Rose Fulbright
Norton Rose Fulbright 1550 Lamar Street Suite 2000 Houston, TX 77010 USA
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Recent years have seen a substantial increase in high-profile, complex antitrust litigation in the State of Texas, which uptick is likely to continue. A conflu - ence of several recent developments has contributed to this trajectory, casting a spotlight on Texas as a locus of antitrust enforcement and private litigation. These developments include the following: • Texas has emerged as a leading enforcer and venue for multi-state antitrust enforcement suits; • significant, business-friendly changes in Texas law have incentivised corporations to incorporate and relocate their headquarters to Texas, open - ing Texas courthouse doors to a broader array of private antitrust litigation; and • the establishment of the Texas Business Court in 2024 has changed the landscape for com - plex commercial litigation in Texas, which could increase private antitrust litigation in the state. The Antitrust Landscape in Texas In the last few decades, antitrust litigation has not been a sizeable component of the dockets of federal and state courts in Texas. However, that is expected to change. The Texas antitrust statute, known as the Texas Free Enterprise and Antitrust Act (TFEAA), specifically requires Texas law to be construed in harmony with federal antitrust law. Perhaps not surprisingly, then, there are only a handful of decisions from the Texas Supreme Court addressing antitrust issues under Texas law.
For instance, in its 2006 Coca Cola Company v Har- mar Bottling Company decision, the Supreme Court of Texas dismissed the plaintiffs’ antitrust conspiracy and monopolisation claims against Coca Cola for alleged injuries occurring in other states. The Court also dismissed claims for in-state harm for failing to show substantial harm – real or threatened – to com - petition in the relevant market. More recently, in its 2021 AMC Entertainment Hold- ings, Inc v iPic-Gold Class Entertainment, LLC deci - sion, the Supreme Court of Texas affirmed summary judgment in favour of the defendant regarding anti - trust conspiracy claims. The Court found that the plaintiff iPic had not presented sufficient evidence beyond parallel conduct to exclude the possibility of lawful, independent conduct by the defendant AMC. (The authors’ firm represented the defendant AMC in this litigation.) However, the recent rise in state enforcement, cou - pled with favourable changes in Texas law governing corporations, have triggered an uptick in antitrust liti - gation in Texas, which is expected to continue in the coming years. Multi-State Antitrust Enforcement Suits in Texas The State of Texas, led by the Texas Office of Attorney General, has taken an active and leading role in inves - tigating and prosecuting alleged antitrust violations. In pursuing these investigations and suits, Texas has joined efforts with other state attorneys general, form - ing multi-state coalitions, and has worked with their federal counterparts at the US Department of Justice (DOJ) and the Federal Trade Commission (FTC).
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