Jeffery J. Sheldon and Andras Konya MD, PhD v. Pinto Technology Ventures, L.P., Pinto Tv Annex Fund, L.P., Ptv Sciences II, L.P., Rivervest Venture Fund I, L.P., Rivervest Venture Fund II, L.P., Rivervest Venture II (Ohio), L.P., Bay City Capital Fund IV, L.P., Bay City Capital Fund IV Co-Investment , 477 S.W.3d 411 ( 2015 )

Reversed and Remanded and Majority and Dissenting Opinions filed
September 10, 2015.
In The
Fourteenth Court of Appeals
NO. 14-13-01066-CV
JEFFERY J. SHELDON AND ANDRAS KONYA, MD, PH.D., Appellants
V.
PINTO TECHNOLOGY VENTURES, L.P., PINTO TV ANNEX FUND, L.P.,
PTV SCIENCES II, L.P., RIVERVEST VENTURE FUND I, L.P.,
RIVERVEST VENTURE FUND II, L.P., RIVERVEST VENTURE II
(OHIO), L.P., BAY CITY CAPITAL FUND IV, L.P., BAY CITY CAPITAL
FUND IV CO-INVESTMENT FUND, L.P., CHRIS OWENS, BILL BURKE,
REESE TERRY, AND CRAIG WALKER, Appellees
On Appeal from the 125th District Court
Harris County, Texas
Trial Court Cause No. 2013-41145
MAJORITY OPINION
Two shareholders of a corporation filed suit seeking redress related to a
series of transactions allegedly orchestrated by various parties. The shareholders
claim the transactions diluted their respective stock interests in the corporation.
All defendants moved to dismiss the claims based on a Delaware forum-selection
clause contained in certain amended and restated versions of an agreement among
the corporation and various shareholders. The trial court dismissed the claims
based on the Delaware forum-selection clause. On appeal, we conclude that the
trial court erred in dismissing the shareholders’ claims because they do not fall
within the scope of the forum-selection clause. Therefore, we reverse and remand.
I. FACTUAL AND PROCEDURAL BACKGROUND
At all material times, appellants Jeffery J. Sheldon and Andras Konya, MD,
Ph.D. (collectively the “Shareholders”) owned shares of common stock in IDev
Technologies, Inc. IDev and some of its shareholders entered into a shareholders
agreement in 2000. This agreement was amended and restated in 2002, 2004,
2006, and 2008. The first two amended and restated agreements contain a Texas
forum-selection clause, but the latter two amended and restated agreements contain
a Delaware forum-selection clause. Sheldon signed all four of the amended and
restated agreements; Konya signed only the first two.
Sheldon alleges that, as of early 2010, he owned just over 5% of the total
outstanding shares of IDev. Konya alleges that, as of early 2010, he owned about
2.4% of the company’s total outstanding shares. The Shareholders allege that as a
result of various actions taken in 2010, their holdings in IDev diluted to the point
that the holdings were “essentially eliminated.” In 2013, a company announced
that it had entered into an agreement under which it would acquire all outstanding
equity of IDev for $310 million net of cash and debt.
Following the announcement, the Shareholders filed suit against various
venture-capital shareholders in IDev, two individuals who were IDev officers at
the time of the allegedly actionable conduct, and two individuals who were IDev
2
directors at the time of the allegedly actionable conduct (collectively the “IDev
Parties”). The Shareholders asserted various claims in which they complain of
actions allegedly taken by the IDev Parties in 2010 that allegedly diluted the
Shareholders’ IDev holdings.
The IDev Parties moved to dismiss the Shareholders’ claims based on the
Delaware forum-selection clause contained in each of the post-2004 amended and
restated agreements. In response, the Shareholders argued, among other things,
that their claims do not fall within the scope of the Delaware forum-selection
clause. The trial court granted the IDev Parties’ motions and dismissed the
Shareholders’ claims based on the Delaware forum-selection clause.
II. ISSUES PRESENTED
On appeal, the Shareholders present three issues:
(1) whether Konya can be bound to a Delaware forum-selection clause
contained in shareholders agreements he did not sign and which
expressly provide they are effective as to a party only upon signing by
that party;
(2) whether appellees Bill Burke and Chris Owens can take advantage
of a Delaware forum-selection clause contained in amended
shareholders agreements they have not executed, which expressly
provide the agreements are effective as to a party only upon signing
by that party; and
(3) whether the Shareholders’ claims stemming from duties owed to
the Shareholders at common law or by statute “arise out of” the
shareholders agreements such that the Shareholders’ claims should be
subject to the Delaware forum-selection clause.
III. STANDARD OF REVIEW
A motion to dismiss is the proper procedural mechanism for enforcing a
forum-selection clause that a party to the agreement has violated by filing suit. See
3
In re AIU Ins. Co., 148 S.W.3d 109, 111–21 (Tex. 2004); Deep Water Slender
Wells, Ltd. v. Shell Int’l Exploration & Prod., Inc., 234 S.W.3d 679, 687 (Tex.
App.—Houston [14th Dist.] 2007, pet. denied). We review the trial court’s
granting of such a motion for an abuse of discretion. See Deep Water Slender
Wells, Ltd., 234 S.W.3d at 687. But, to the extent that our review involves the
construction or interpretation of an unambiguous contract, the standard of review is
de novo. See id.
IV. ANALYSIS
The amended and restated shareholders agreements dated 2006, 2008, and
2010 each contain a forum-selection clause stating that “the Delaware state courts
of Wilmington, Delaware (or, if there is exclusive federal jurisdiction, the United
States District Court for the District of Delaware) shall have exclusive jurisdiction
and venue over any dispute arising out of this Agreement.”1 Under the
unambiguous language of the clause, the parties bound agree that “any dispute
arising out of this Agreement” shall be resolved in certain courts in Delaware. See
id. The provision is a mandatory forum-selection clause. See id.
In deciding whether to enforce a mandatory forum-selection clause, courts
must determine whether the claims in the case at hand fall within the scope of the
forum-selection clause and whether the court should enforce the clause. See id. In
addition to resolving issues of scope and enforceability, courts also may have to
decide issues as to whether nonsignatories to the contract containing the clause can
enforce the clause or issues as to whether such nonsignatories are bound by the
1
These amended and restated shareholders agreements also contain a Delaware choice-of-law
clause. Nonetheless, the determination as to whether claims in Texas courts should be dismissed
based on a forum-selection clause is a matter governed by Texas law, even if the merits of the
claims in question are governed by the law of another jurisdiction. See In re Lisa Laser USA,
Inc., 310 S.W.3d 880, 883 n.2 (Tex. 2010).
4
clause. See id. The Shareholders assert that their claims do not fall within the
scope of the forum-selection clause. The Shareholders also assert that
nonsignatory Konya is not bound by the forum-selection clause and that non-
signatories Burke and Owens cannot enforce the clause. The Shareholders have
not challenged the enforceability of the forum-selection clause. See id. at 692–93.
A. Applicable Law and Summary of Claims
In determining whether the Shareholders’ claims fall within the scope of the
forum-selection clause, we consider the language of the clause and the nature of
the claims that are allegedly subject to it. See id. at 687–88. In the clause at issue
in today’s case, the parties bound thereby agree that certain courts in Delaware
“shall have exclusive jurisdiction and venue over any dispute arising out of this
Agreement.” As many courts have recognized, such “arising out of” language
covers a significantly smaller category of disputes than broader phrases—such as
“any dispute related to this Agreement”—that parties sometimes choose to employ
in drafting forum-selection and arbitration clauses. E.g., Osornia v. AmeriMex
Motor & Controls, Inc., 367 S.W.3d 707, 712–14 (Tex. App.—Houston [14th
Dist.] 2012, no pet.); Kirby Highland Lakes Surgery Ctr., L.L.P. v. Kirby, 183
S.W.3d 891, 898 (Tex. App.—Austin 2006, orig. proceeding). In In re Lisa Laser
USA, Inc., the parties to an agreement agreed that certain courts in California
would have “exclusive jurisdiction and venue over any dispute arising out of this
agreement.” 310 S.W.3d 880, 882 (Tex. 2010). The Supreme Court of Texas
concluded that claims by one of the contracting parties for breach of the agreement
and for tortious interference with contract arose out of the agreement. In reaching
this conclusion, the high court gave precise instruction, stating as follows:
[The plaintiff’s] claims arise out of the Agreement rather than other
general obligations imposed by law. That is, but for the Agreement, [the
5
plaintiff] would have no basis to complain that [one of the defendants] failed
to offer the right of first refusal to [the plaintiff] to distribute new products,
failed to provide [the plaintiff] information about new products, allowed
other distributors to sell products for which [the plaintiff] was supposed to
be the exclusive distributor, and wrongfully terminated the contract. See In
re Int’l Profit Assocs. I, 274 S.W.3d at 678. Accordingly, the trial court erred
in refusing to enforce the clause in the Texas lawsuit.
In re Lisa Laser USA, Inc., 310 S.W.3d at 886 (emphasis added).2
In the Shareholders’ live pleading, they assert claims for minority-
shareholder oppression, common-law fraud, violations of the Texas Securities Act,
and breach of fiduciary duty3 based on the following allegations, summarized in
the remaining paragraphs in this Section IV. A.:4
Sheldon acquired substantial common shares of IDev and a more modest
holding of preferred shares such that his total company holdings amounted to just
over 5% of the total outstanding shares of IDev as of early 2010. Konya received
650,000 shares of IDev common stock in early 2001. Konya’s holdings amounted
to about 2.4% of the total outstanding shares of IDev as of early 2010.
2
Citing Texas Source Group, Inc. v. CCH, Inc., the IDev Parties assert that a federal district
court has held that claims arose from the agreement containing a forum-selection clause because
the claims required an evaluation of the rights contained in the agreement. See 967 F. Supp. 234,
237–38 (S.D. Tex. 1997). Presuming that the court in that case so held, this holding would be
under federal law rather than Texas law and would conflict with the Supreme Court of Texas’s
opinion in Lisa Laser, which we are bound to apply. See Alliance Health Group, LLC v.
Bridging Health Alliance Health Group, LLC, 553 F.3d 397, 399 (5th Cir. 2008) (concluding
that federal law applies to the determination of whether a forum-selection clause should be
enforced as to claims in federal court); In re Lisa Laser USA, Inc., 310 S.W.3d at 886.
3
The Shareholders also asserted vicarious liability theories of conspiracy and inducement of
others to breach their fiduciary duties.
4
We need not and do not address the merits of any of these allegations; instead, we examine
them to determine the nature and substance of the Shareholders’ claims so that we may
determine whether these claims fall within the forum-selection clause. See Deep Water Slender
Wells, Ltd., 234 S.W.3d at 695–96 (concluding that courts do not determine the merits of claims
in determining whether the claims must be litigated elsewhere under a forum-selection clause).
6
Each of the corporate defendants holds itself out as a venture-capital fund
(collectively the “Venture Capital Stockholders”). By 2010, the Venture Capital
Stockholders had acquired substantial holdings of IDev preferred stock and
collectively controlled over 60% of the IDev issued and outstanding stock. The
preferred stock was convertible to IDev common stock under certain
circumstances. Through rights acquired in connection with their investments, the
Venture Capital Stockholders directly determined who held four of the six seats on
the IDev board of directors. These four controlled directors, in turn, determined the
other two directors. These two so-called independent board slots were filled by
defendants Reese Terry and Craig Walker as of and after 2010.
IDev hired defendant Owens as Chief Executive Officer in late 2009. IDev
hired defendant Burke as Chief Financial Officer in late 2009. Both were offered
rights to shares of IDev common stock along with their employment, but the
company did not have sufficient authorized shares at the time of employment to
deliver to them. Through the events made the subject of this suit, the company
essentially eliminated the approximate 5% holdings of Sheldon, the 2.4% holdings
of Konya and the holdings of other IDev common stock holders and delivered
options for approximately 5% of the company’s shares to Owens and 1.5% of the
company’s shares to Burke.
Before 2010, major company shareholders, including Sheldon, Konya, and
the Venture Capital Stockholders, had entered into a shareholders agreement. The
shareholders agreement in effect before the events made the subject of this suit
named Sheldon a “Key Shareholder” and a “Significant Shareholder,” which
provided Sheldon with certain rights relating to the sale of shares of the company
by other participants to the agreement and with preemptive rights to acquire newly
7
issued company shares to maintain the same approximate 5% holdings. Konya
was identified in the shareholders agreement as a “Key Shareholder.”
At some point in 2010, the IDev Parties determined to alter IDev’s stock
holdings, to dilute the holdings of the company’s common shareholders to the
point that the common stock holders were almost wiped out altogether, to permit
the Venture Capital Stockholders and their select related parties to acquire newly
issued preferred stock, and to deliver IDev stock to Owens and Burke. To do so,
the IDev Parties set out to reduce Sheldon’s holdings and Konya’s holdings to a
modest fraction of 1% and to similarly dilute the holdings of other existing
shareholders.
Beginning mid-July 2010, the IDev Parties allegedly began the following
steps to accomplish their goal:
 The Venture Capital Stockholders, without prior notice to other
shareholders, caused the conversion of all preferred stock to
common stock.
 The Venture Capital Stockholders, without prior notice to other
shareholders, caused the reverse stock split of all common stock
to reduce the number of common stock shares by a 100 to 1
factor.
 The Venture Capital Stockholders, without prior notice to other
shareholders, caused the board of directors to join with them to
amend the shareholders agreement, eliminating Sheldon and
other similarly situated shareholders as “Significant
Shareholders” with preemptive rights.
 The two disinterested “independent” directors, Terry and
Walker, breached their fiduciary duties by voting to approve the
various parts of these transactions, including the amendment of
the shareholders agreement.
 The IDev board of directors authorized Owens and Burke to
disseminate various communications and execute various
documents as part of the series of transactions in breach of their
fiduciary duties and in conspiracy with the other IDev Parties.
8
 The IDev Parties offered new preferred stock primarily to other
prior preferred stock holders in a manner that significantly
diluted the holdings of prior common stockholders and
enhanced the percentage holdings of prior preferred
stockholders.
 The IDev Parties caused the shareholders agreement to be
amended in hopes of avoiding Sheldon’s (and others’)
preemptive rights in respect of their common and preferred
stock holdings.
 As part of the communications to Sheldon and others similarly
situated, the IDev Parties made various false representations
and misleadingly failed to disclose certain information.
According to the Shareholders, once the IDev Parties essentially eliminated
the holdings of those shareholders they elected to not favor, the IDev Parties
continued the company operations. In July 2013, a company announced that it had
entered into an agreement to purchase IDev for $310 million net of cash and debt.
The company was to acquire all outstanding equity of IDev. According to the
company’s press release, the sale was slated to close by the end of 2013. Sheldon’s
more than 5% holdings should have resulted in several millions of dollars, but if
Sheldon is paid only for his holdings after they were manipulated, diluted, and
devalued by the transactions described above, Sheldon would be lucky to receive
$20,000. Konya’s 2.4% holdings should result in over one million dollars, but if he
is paid only for his holdings after they were manipulated, diluted, and devalued by
the transactions described above, Konya would be lucky to receive $10,000. The
actions of the IDev Parties caused this loss.
B. Did the trial court err in determining that the Shareholders’
claims fall within the scope of the forum-selection clause?
Considering these allegations as a whole, we note that the Shareholders do
not assert any claims for breach of the shareholders agreement or any other
9
agreement. No potentially applicable version of the shareholders agreement
purports to give Konya any preemptive rights or other anti-dilution protection. As
a Significant Shareholder, Sheldon did have preemptive rights under the 2008
Shareholders Agreement. Nonetheless, in this lawsuit, Sheldon does not seek to
enforce these preemptive rights, nor does he assert that the IDev Parties violated
them.5 The Shareholders assert an assortment of non-contractual claims, including
minority-shareholder oppression, common-law fraud, violations of the Texas
Securities Act, breach of fiduciary duties, conspiracy, and inducement of others to
breach their fiduciary duties. All of these allegations are based on a series of
actions that the IDev Parties allegedly took in 2010 that allegedly had a substantial
dilution effect on the Shareholders’ IDev holdings. One of these alleged actions
was to amend the 2008 Shareholders Agreement to eliminate Sheldon’s preemptive
rights. Yet, all of the purported obligations that the IDev Parties allegedly
breached arise either under statute or common law. A common-sense examination
of the substance of the Shareholders’ claims shows that general legal obligations,
rather than any of the shareholders agreements, establish the alleged duties that the
5
The IDev Parties assert that the shareholders agreements and the preemptive rights that they
provide are central to the Shareholders’ claims because they provide the only mechanism
available to protect the Shareholders against dilution of their holdings. The IDev Parties’
positions as to the merits of the Shareholders’ claims and the law applicable to them are likely
different from the Shareholders’ positions as to these matters. Nonetheless, the merits of these
claims and the interpretation of the law applicable to them are subjects not before this court. We
must determine the nature of the claims the Shareholders have asserted, and they have not
asserted any claims for breach of the shareholders agreements or for violation of any preemptive
rights under these agreements. The IDev Parties argue that the only means by which the
Shareholders may recover based on the dilution of their IDev holdings is by enforcing alleged
preemptive rights under the shareholders agreements. If the IDev Parties are correct, then the
Shareholders’ claims will fail on the merits. But, the alleged lack of merit of the Shareholders’
claims is not a basis for this court to ignore the nature and substance of the claims the
Shareholders have pleaded in determining whether these claims are within the scope of the
forum-selection clause.
10
IDev Parties purportedly breached.6
Under the Shareholders’ allegations, even if there had been no shareholders
agreements, the Shareholders still would be able to assert all of their claims. Thus,
the agreements with a Delaware forum-selection clause and the plaintiffs’ claims
lack the “but for” relationship upon which the Supreme Court of Texas relied in
Lisa Laser.7 See In re Lisa Laser USA, Inc., 310 S.W.3d at 886.
A basic principle of American jurisprudence is that “the party who brings
a suit is master to decide what law he will rely upon.” The Fair v. Kohler Die &
Specialty Co., 228 U.S. 22, 25, 33 S. Ct. 410, 411, 57 L. Ed. 716 (1913). Thus,
Sheldon and Konya—not the IDev Parties or any court—each get to decide the
claims to assert against the IDev Parties and to identify the legal obligations on
which these claims are based. As master of his claims, Konya could have sought
to recover based on the IDev Parties’ alleged breaches of the shareholders
6
The Shareholders have cited a Delaware case in which the court concluded that the
shareholders/plaintiffs had stated non-derivative claims upon which relief might be granted
against venture-capital shareholders and members of the board of directors based on allegations
of breach of fiduciary duty and aiding and abetting of breach of fiduciary duty. See Carsanaro v.
Bloodhound Techs., Inc., 65 A.3d 618, 639, 642–43, 659 (Del. Ch. 2013). No mention is made
of any shareholders agreement. See id. at 627–66. This opinion simply illustrates that, as the
Shareholders have done in their pleading, it is possible to assert claims based on dilutive
corporate transactions without relying on rights created under any shareholders agreement. In
citing the Carsanaro case, we make no comment on the merits of the Shareholders’ claims, nor
do we address the merits of any of the legal issues discussed in that opinion.
7
In In re Fisher, the Supreme Court of Texas determined whether the action in that case was “an
action arising from a major transaction” within the meaning of Civil Practice and Remedies Code
section 15.020(c). See Tex. Civ. Prac. & Rem. Code Ann. § 15.020(c) (West, Westlaw through
2013 3d C.S.); In re Fisher, 433 S.W.3d 523, 529–31 (Tex. 2014). In this statutory language,
“arising from” modifies “major transaction” rather than any agreement. See Tex. Civ. Prac. &
Rem. Code Ann. § 15.020(c). Nonetheless, the high court cited several forum-selection clause
cases, including the Lisa Laser case, and stated that the court similarly would undertake a
common-sense examination of the substance of the claims. See In re Fisher, 433 S.W.3d at 529–
31. In doing so, the Fisher court reiterated that the claims in Lisa Laser arose out of the
agreement because the defendants’ alleged obligations would not have existed but for the
agreement and were not imposed under general law. See id. at 530–31.
11
agreement. This decision would have been curious because no potentially
applicable version of the shareholders agreement purports to give Konya any
preemptive rights or other anti-dilution protection. Konya chose not to rely upon
the shareholders agreement as a source of the legal obligations upon which he
bases his claims against the IDev Parties. As a Significant Shareholder, Sheldon
did have preemptive rights under the 2008 Shareholders Agreement. Sheldon
could have asserted a claim for breach of that shareholders agreement or he could
have relied upon the shareholders agreement as a source of the legal duties upon
which he bases his claims against the IDev Parties. Nonetheless, as master of his
claims, Sheldon chose not to take either action.
We should not ignore what is, based on what might have been. See Air
Routing Int’l Corp. (Canada) v. Britannia, 150 S.W.3d 682, 700 (Tex. App.—
Houston [14th Dist.] 2004, no pet.). Though the Shareholders might have based
their claims in whole or in part on the breach of obligations under the shareholders
agreement, they did not do so. The claims that the Shareholders actually have
asserted are based on violations of general obligations allegedly imposed either by
statute or by the common law,8 and the bases for these claims would exist even if
there never had been an agreement between or among any of the shareholders.9 If,
in the future, the Shareholders were to assert claims based on the breach of
obligations under the shareholders agreement, the IDev Parties would have the
right to file a motion to dismiss to enforce the Delaware forum-selection clause
based on these claims. Yet, even though the Shareholders might have claims
8
Our dissenting colleague suggests that we should not rely on whether the Shareholders’ claims
arise out of non-contractual general obligations imposed by law. See post, at 2. But, the parties’
chosen contractual language and the analysis of the Lisa Laser case require that we do so. See In
re Lisa Laser USA, Inc., 310 S.W.3d at 886.
9
Our dissenting colleague asserts that our analysis is based only on the labels of the
Shareholders’ claims rather than the substance of these claims. See post, at 2. We base our
analysis on the nature and substance of the claims rather than any label.
12
arising out of the shareholders agreement that they could have asserted, the fact
remains that they have not asserted these claims. If, under applicable law, the
claims a plaintiff asserts are not within the scope of a forum-selection clause, the
existence of unasserted claims that are within the scope of this clause does not
cause the asserted claims to fall within the scope of the clause. See Deep Water
Slender Wells, Ltd., 234 S.W.3d at 687–88 (stating that in determining whether the
Shareholders’ claims fall within the scope of the forum-selection clause, we
consider the language of the clause and the nature of the asserted claims that are
allegedly subject to the clause).
We recognize the line of cases construing and applying broadly written
arbitration clauses in which courts effectively state that “‘if the facts alleged ‘touch
matters,’ have a ‘significant relationship’ to, are ‘inextricably enmeshed’ with, or
are ‘factually intertwined’ with the contract that is subject to the arbitration
agreement, the claim will be arbitrable.’” AutoNation USA Corp. v. Leroy, 105
S.W.3d 190, 195 (Tex. App.—Houston [14th Dist.] 2003, no pet.) (quoting
Pennzoil Co. v. Arnold, 30 S.W.3d 494, 498 (Tex. App.—San Antonio 2000, no
pet.)) (interpreting arbitration clause covering “claim[s] arising out of or relating
to” agreement). This line of cases does not apply for two reasons. First, the Lisa
Laser court did not apply this analysis.10 See In re Lisa Laser USA, Inc., 310
10
Our dissenting colleague relies upon In re Weekley Homes, L.P. See 180 S.W.3d 127, 135
(Tex. 2005) (orig. proceeding). But, that case involved a very broad arbitration clause rather
than one limited to “all claims arising out of this agreement.” See id. at 129. Our colleague also
relies on In re International Profit Associates, Inc. 274 S.W.3d 672, 677 (Tex. 2009) (orig.
proceeding) (per curiam). That case addressed a forum-selection clause lacking any express
requirement of a relationship between the claims and the agreement, and the parties in that case
had “no relationship . . . apart from the contracts.” Id. at 674, 677, 678. In addition, the “direct
benefit” standard cited in International Profit Associates was used in Weekley Homes to
determine whether a nonparty should be bound by an arbitration clause, which is not one of the
issues we address in this opinion. See id. at 677 (citing In re Weekley Homes, L.P., 180 S.W.3d
at 131–32); In re Weekley Homes, L.P., 180 S.W.3d at 131–32 .
13
S.W.3d at 886. Second, this court previously has held that this line of cases does
not apply to a narrower clause requiring arbitration of “all claims arising out of this
Agreement.” Osornia, 367 S.W.3d at 712, 713–14. Applying this line of cases
would not honor the language the parties chose to include in their agreements. See
id.
The Shareholders’ claims all arise out of alleged non-contractual, general
obligations imposed by law rather than out of the shareholders agreement.11 Under
the Shareholders’ live pleading, even if there had been no shareholders agreement,
the Shareholders still have all the same bases to complain of the IDev Parties’
allegedly wrongful conduct in 2010.12 So, under the binding precedent in Lisa
Laser, the Shareholders’ claims do not arise out of the shareholders agreement and
do not fall within the scope of the Delaware forum-selection clause.13
11
Our dissenting colleague asserts that the Shareholders’ damages would be calculated by
comparing “their holdings under the 2008 Agreement and the 2010 Agreement.” Post, at 4. She
also states that, but for the shareholders agreement, there would be no relationship between the
parties and no claims by the Shareholders. See id., at 5. In various parts of the dissenting
opinion, our colleague appears to be treating the shareholders agreement as if it were IDev’s
corporate charter. The shareholders agreement is a contract among IDev and some of its
shareholders. None of the parties to the shareholders agreement were obligated to enter into it by
applicable corporate law. The shareholders agreement is not IDev’s certificate of incorporation,
IDev’s bylaws, or the Delaware General Corporation Law. Thus, the Shareholders do not hold or
own IDev stock under the shareholders agreement. Even if there had not been a shareholders
agreement, there would be a relationship among the parties because they still would have been
owners of IDev stock. And, the Shareholders’ claims based on general legal obligations are not
claims based on the shareholders agreement.
12
Our dissenting colleague cites a recent case from the Supreme Court of Texas for the
proposition that there is no limiting principle for the causative chain in a “but for” requirement.
See post, at 3 (citing Plains Exploration & Prod. Co. v. Torch Energy Advisors Inc., No. 13-
0597, — S.W.3d —, —, 2015 WL 3653330, at *10 (Tex. June 12, 2015)). But, the lack of a
principle limiting how far back a causal chain may go does not mean that an element not in the
causal chain satisfies the “but for” requirement.
13
This forum-selection clause, like that in Lisa Laser, does not cover all claims or disputes
arising out of or relating to the shareholders agreement or the relationships between and among
IDev shareholders. Our dissenting colleague states that no other court of appeals has applied the
Lisa Laser precedent in the way it is applied in this opinion. But, the pertinent part of Lisa Laser
14
Accordingly, we sustain the Shareholders’ third issue.14
V. CONCLUSION
The Delaware forum-selection clause applies only to “any dispute arising
out of” the shareholders agreement. Under binding precedent from the Supreme
Court of Texas, the Shareholders’ claims do not fall within the scope of the clause.
Therefore, the trial court erred in dismissing these claims based on the clause. We
reverse the trial court’s judgment and remand for further proceedings consistent
with this opinion.
/s/ Kem Thompson Frost
Chief Justice
Panel consists of Chief Justice Frost and Justices Christopher and Busby.
(Christopher, J., dissenting).
involved the application of a forum-selection clause covering all disputes “arising out of this
Agreement,” and the case under review appears to be the first case involving such a clause to
have been decided after Lisa Laser. No other court has had occasion to address the issue.
14
Because we sustain the third issue, we need not and do not address the Shareholders’ first and
second issues.
15