USA – TEXAS Trends and Developments Contributed by: Darryl Anderson, Carlos Rainer, Geraldine Young and Abraham Chang, Norton Rose Fulbright
irrelevant when corporations establish their corporate residence in Texas. Thus, if the new Texas legislation has its intended effect and more corporations choose to incorporate in Texas under Texas law, an increase in antitrust litigation in Texas courts may also follow. Notably, the growth in antitrust litigation is likely to manifest in two ways. First, one can expect increased amounts of litigation filed by private plaintiffs in Texas, as it becomes an available forum that can efficiently adjudicate all of the claims against the target compa - ny. Second, a rise more generally in business disputes being filed in Texas will present expanded opportuni - ties for antitrust counterclaims to be filed. It is too soon to know the full consequences of the revamped Texas law governing corporate organisa - tion, but the incentives are set up to foster significant antitrust litigation in Texas in coming years. The Impact of the New Texas Business Court on Antitrust Litigation in Texas Another key component of the recent Texas legislation is the establishment of the Texas Business Court and corresponding Fifteenth Court of Appeals. This devel - opment is also expected to increase private antitrust litigation in Texas courts. The Texas Business Court opened its courtroom doors in September 2024. This new development may impact antitrust litigation in Texas in at least two ways. First, instead of less spe - cialised state courts, the Texas Business Court may preside over antitrust claims within its jurisdiction. Second, the business-focused court may, as intend - ed, have a broader effect of attracting more business litigation, including antitrust litigation, in both Texas federal and state courts. As relevant background, the following aspects of the Texas Business Court are worth noting. • It was created as a specialised court to hear and decide complex business disputes and related commercial litigation, with the goal of enhancing predictability and efficiency for both sides. • It is composed of judges: (a) appointed by the Texas Governor and con - firmed by the Texas Senate, for two-year terms with unlimited re-appointments; (b) with at least ten years of judicial or business
law experience, plus citizenship and residency requirements; and (c) to be supported by resources, such as staff at - torneys, technical experts and consultants. • It is composed of 11 geographical divisions, with two judges assigned to each division and with five of those divisions currently operational, covering counties surrounding the major Texas cities of Dal - las, Austin, San Antonio, Fort Worth and Houston, for a total of ten current judges. • It can preside over suits originally filed in the court, removed to the court from other state courts, or transferred on a court’s own initiative, if jurisdic - tional and venue requirements are met. • It is intended to be self-supported through the charging of fees. Appeals from the Texas Business Court will go directly to the Fifteenth Court of Appeals, also established in September 2024. That state appellate court has exclusive jurisdiction over not only business court appeals but also actions by or against state entities and employees, as well as actions challenging the constitutionality of a statute or rule when the Texas Attorney General is a party, subject to certain exclu - sions. Currently, three justices sit on the Fifteenth Court of Appeals. The Texas Business Court’s jurisdiction is limited by statute and concurrent with other civil courts in Texas. The Business Court’s jurisdiction is delineated into several categories based on the nature of the suit – for example, as follows. • The Business Court has jurisdiction over certain business disputes, such as derivative, corporate governance and securities disputes, if the amount in controversy exceeds USD5 million, unless a party is a publicly traded company (in which case there is no dollar requirement). • The Business Court also has jurisdiction over com - mercial disputes where the amount in controversy exceeds USD10 million and where the dispute arises out of a: (a) transaction with consideration or non-bank loan of at least USD10 million; (b) non-insurance contract or transaction where the parties agreed to Business Court jurisdic -
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