Writ of Mandamus Conditionally Granted; Opinion Filed January 8, 2013




                                                                     in The
                                                 Itizirt tif Appirnts
                                           1±1! Thatiirt tif UiXt at ) a1tw3
                                                          No. 05-12-01577-CV


          IN RE METROPCS COMMUNICATIONS, INC.; DEUTSCHE TELEKOM;
           I -MOBILE USA, INC, ROGER D LINQU1ST, W MICHAEL BARNES,
         JACK F. CALLAHAN, JR.; C. KEVIN LANDRY; ARTHUR C. PATTERSON;
                         AND JAMES N. PERRY, JR., Relators


                            Original Proceeding from the County Court at Law No. 1
                                             Dallas County, Texas
                                     Trial Court Cause No. CC-12-06144-A


                                                                OPINION
                                         Before Justices Bridges, Lang, and Fillmore
                                                  Opinion By Justice Lang

           This mandamus proceeding arises from a “shareholder class and derivative action” brought

by real party in interest Adam Golovoy’ against relators
                                                2 for alleged breaches of fiduciary duty

respecting a proposed “business combination” involving MetroPCS, DT, and T-Mobile. Golovoy

filed a motion for a temporary restraining order to enjoin several alleged “deal protection devices”

pertaining to the proposed business combination, including, inter alia, (1) the issuance of any

“Rights Certificates” to MetroPCS common stockholders pursuant to a MetroPCS “Rights


     (lolovoy asserted in his petition that he is a shareholder of MetroPCS Communications, Inc. “MetroPCS”) and that the underlying action was
brought “derivatively on behalf of [MetroPCSj’ and “individually on behalf of the holders of MetroPCSi common stock.”

    2
      Relators named as defendants in the underlying lawsuit were Deutsche Telekom (“DT”); T-Mobile USA, Inc. (“T-Mobile”); Roger D. Linquist;
W. Michael Barnes; Jack F. Callahan, Jr.; C. Kevin Landry; Arthur C. Patterson; and James N. Perry. Jr. The latter six were described in the petition
as members of MetroPCS’s board of directors. Relator MetroPCS was named in the petition as a “nominal party.”
Agreement” dated March 29, 2007, and (2) compliance with a voting provision contained in section

45(h) of the agreement governing the proposed business combination (the “Business Combination

Agreement”). Relators filed (1) a motion to dismiss in which they asserted that a “mandatory

exclusive forum selection provision” in MetroPCS’s bylaws requires that this case be brought only

in Delaware and (2) a motion to stay in which they requested the trial court to rule on their motion

to dismiss before considering Ciolovoy’s motion for a temporary restraining order. After holding a

hearing on Golovoy’s motion, the trial court signed a temporary restraining order dated November

16, 2012 (the “TRO”). The TRO enjoined MetroPCS and its board of directors from “causing or

allowing” the issuance of the “Rights Certificates” described above or complying with the voting

provision in section 4.5(h) of the Business Combination Agreement. Additionally, in the TRO, the

trial court set a November 29, 2012 hearing to determine whether the TRO “should be made a

Temporary Injunction pending a full trial on the merits.”

           In their petition for writ of mandamus, relators request this Court to direct the trial court to

(I) vacate the TRO, including the setting for the temporary injunction hearing, (2) deny Golovoy’s

motion for a temporary restraining order, and (3) grant relators’ motion to stay the case until relators’

motion to dismiss is decided.
                     3 Because we conclude the trial court abused its discretion and relators

have no adequate remedy by appeal, we conditionally grant the writ of mandamus.

                              I. FACTUAL AND PROCEDURAL BACKGROUND

           Golovoy contended in his petition that DT, T-Mobile, and the members ofMetroPCS ‘s board

ofdirectors (the “Board”) breached fiduciary duties or aided and abetted such breaches in connection

with DT and T-Mobile’s “proposed acquisition of [MetroPCS] at an unfair price via a


       Additionally, relators requested expedited relief by separate motion filed along with their petition for writ of mandamus, Pursuant to that
motion. in a November 20. 2012 order, this Court stayed the temporary restraining order at issue and the temporary injunction hearing described
therein until further order of this Court.




                                                                      —2—
recapitalization”pursuant to the Business Combination Agreement According to Golovoy, the “per

share value ofthe Proposed Acquisition drasticallyundervalues [MetroPCS’s] worth and prospects.”

Further Golovoy asserted “the terms ofthe Proposed Acquisition were designed to ensure the sale

of [MetroPCS] to one buyer, and one buyer only” on terms preferential to DT, T-Mobile, and the

Board, “and to subvert the interests of plaintiff and the other public stockholders of [MetroPCS].”

Specifically, Golovoy contended

       The Board breached its fiduciary duties by agreeing to preclusive deal protection
       devices in connection with the [Business Combination Agreement] [MetroPCS]
       entered into with T-Mobile [and DTJ. These provisions, which collectively preclude
       any competing offers for [MetroPCS], include: (i) a no-solicitation provision that
       precludes [MetroPCS] from providing confidential [MetroPCS] information to, or
       even communicating with, potential competing bidders except under extremely
       limited circumstances; (ii) a matching rights provision that allows T-Mobile [and
       DT] to match any competing superior proposal; and (iii) a termination fee provision
       which obligates [MeIr0PCS] to pay T -Mobile [and DT] a $150 million termination
       fee in the event the Proposed Acquisition is terminated in fhvor of a superior
       proposal.

       Golovoy contended in part that unless enjoined by the trial court “defendants will

consummate the Proposed Acquisition, and plaintiff and the other [MetroPCS] shareholders will

forever lose their equity interest in [MetmPCS] for an inadequate price, all to the irreparable harm

of plaintiffand the other shareholders of[MeIr0PCS].” The reliefrequested in the petition included,

inter alia, awarding damages to MetroPCS; declaring the Business Combination Agreement

“unlawfhl and unenforceable”; rescinding, to the extent already implemented, the Business

Combination Agreement, “including the onerous and preclusive deal protection devices”; and

“[e]njoining defendants, their agents, counsel, employees and all persons acting in concertwith them

from consummating the Proposed Acquisition, unless and until defendants disclose all material

information to [MetroPCS’s] shareholders in advance of the shareholder vote on the Proposed

Acquisition necessary for [MetroPCS’s] shareholders to be able to make a fully informed decision



                                               -3-
on the Proposed Acquisition.” On the day after the petition was filed, Golovoy’s counsel of record,

Jamie McKey, filed a “Verification” in which she testified, “1 have read the Shareholder Derivative

and Class Action Petition for Breach of Fiduciary Duty. The facts stated in it are within my personal

knowledge and are true and correct.”

       On November 5, 201 2, Golovoy filed a “Motion for a Temporary Restraining Order and an

Order Compelling Expedited Discovery.” In that motion, Golovoy asserted in part

       [T]he Board has agreed to a number of unfair contractual terms in the merger
       documents that are designed to take freedom of choice, and any hope for a better
       deal, away from shareholders. Each day that passes with those unfair contractual
       terms in place decreases the likelihood that a better offer will be made for the
       Company, and increases the likelihood that shareholders will be disenfranchised and
       otherwise irreparably harmed. Accordingly, time is of the essence, and the Proposed
       Acquisition and the unfair contractual terms agreed to by defendants should be
       restrained and enjoined so that a fair and open process can take place.

       Golovoy restated the contentions in his petition respecting the undervaluation of MetroPCS

and the three alleged “preclusive deal protection devices” described therein. Further, in the motion,

Golovoy stated in part

       On October 3, 2012, [MetroPCS] entered into an amendment to the its [sic] Rights
       Agreement, dated as of March 29, 2007, by and between [MetroPCS] and American
       Stock Transfer & Trust Company, LLC, as Rights Agent (the “Poison Pill”). The
       amendment makes [MetroPCS’s] Poison Pill inapplicable to the Proposed
       Acquisition, but keeps the Poison Pill in place as to all other potential acquirers of
       [MetroPCS] (the “Poison Pill Lock-Up”). That means that if a potential acquirer
       other than [DT and] T-Mobile attempts to launch a tender offer for more than 15%
       of [MetroPCS’s] outstanding stock, or even announces an intention to do so, a
       “flip-in” event, will occur that allows existing [MetroPCS] shareholders to buy more
       [MetroPCS] shares at a discount, making [MetroPCS] prohibitively expensive for
       any buyer.,. As such, the Poison Pill Lock-Up is an onerous and inappropriate deal
                     .




       protection device that has the immediate and absolute effect ofdiscouraging potential
       acquirers from making a competitive and superior bid for [MetroPCS] in the form of
       a tender offer directly to [MetroPCS’s] shareholders.

              In addition the Business Combination Agreement also contains a “force the
       vote” provision. MetroPCS cannot terminate the Proposed Transaction even if a
       competing bid is made unless [MetroPCS] holds its shareholder vote and
       shareholders vote no. Rather than insisting on a “fiduciary out” that would permit the



                                                -4-
        board to terminate the Proposed Acquisition in the event a higher otter came along,
        the Board instead agreed to a “forced vote on the Proposed Acquisition regardless
        ot any helter deals. See Briscoe Dccl.. Ex. A at 4.5(h). These lockups are simply
        un1ur and should he restrained and enjoined.

        Golovov’s counsel of record. Willie C. Briscoc. tiled an afhdavit dated November 5. 2012.

in support o (olovov     S   motion for a temporary restraimnu order and order compelling expedited

discovery, in that aflklavit, Briscoe testi hed as follows:

         *   . I make this declaration in support of Plaintiffs’ Motion fbr a Temporary
                 .   .




        Restraining Order and an Order Compelling Expedited Discovery. I have personal
        knowledge of the matters stated herein and, if called upon, I could and would
        competently testify thereto.

        2. Attached is a true and correct copy of the following exhibit:

       Exhibit A: [Business Combination Agreement] between Deutsche Telekorn AG,
       I—Mobile USA. Inc. and MetroPCS Communications, Inc.. dated October 3, 2() 12.

        I declare under penalty of perjury under the laws of’ the State of Texas that the
        foregoing is true and correct.

Attached to Briscoe’s affidavit was a copy of the Business Combination       Agreement.


        On November 12, 2012, relators tiled a “Motion to Dismiss or Stay” (the “Motion to

l)ismiss”). In the Motion to Dismiss, relators asked the trial court to “dismiss or, in the alternative,

to stay this action in favor of parallel litigation in Delaware based on a mandatory forum selection

provision in MetroPCS’ bylaws and in the interests of comity.” Attached to relators’ Motion to

Dismiss was a document titled “Fourth Amended and Restated Bylaws of MetroPCS

Communications, Inc.,” which stated in part

       [T]he Court of Chancery of the State of Delaware shall be the sole and exclusive
       forum for (i) any derivative action or proceeding brought on behalf of the
       Corporation, [or] (ii) any action asserting a claim of breach of a fiduciary duty owed
       by any director, officer or other employee of the Corporation to the Corporation or
       the Corporation’s stockholders.     .




       Additionally, on that same date, relators filed an “Opposition to Plaintiffs’ Motion for
lemporary Restraining Order and Expedited Discovery.” which included a “Motion to Stay” (the

“Motion to Stav” requesting the trial court to rule on relators’ Motion to Dismiss before considering

Golovov’s motion for a temporary restraining order and expedited discovery. In opposition to the

motion for a temporary restraining order. relators argued in part

        Plaintiff’s Motion is not verified, and the only evidence tiled by Plaintiff is the
        Affidavit of Plainti ft’s counsel—which does nothing more than authenticate the
        Business Combination Agreement between MetroPCS, Dl and T-Mobile. Plaintiff
        has not tiled any evidence of the prerequisites for obtaining injunctive relief under
        the Texas Rules of Civil Procedure—4 1) a probable right to relief, (2) probable
        injury, (3) imminent harm, (4) irreparable injury, and/or (5) an inadequate remedy at
        law.

Further, in their Motion to Stay, relators objected to the trial court “ruling on Plaintiffs Motion

before first ruling on the MetroPCS Defendants’ Motions.”

        A hearing on (lolovoy’s motion for a temporary restraining order and order compelling

expedited discovery was held on November 14, 2012. Counsel for Golovoy argued in part that DT,

T—Mobile, and the Board “colluded” to agree to the five “deal protection devices” described above,

which “are standing in the way of other buyers from coming forward.” Golovoy asked the trial court

to “restrain operation of two of these provisions”: (1) the “poison pill lockup” and (2) the “force the

vote provision.” Further, Golovoy requested an “accelerated preliminary injunction hearing” to

determine whether relators “should be permanently restrained from enacting and keeping in place

these deal protection devices.” As to the forum selection provision in question, Golovoy contended

in part that the provision was unenforceable because the Board had the power to “unilaterally”

change the bylaws and thus there was no “mutual bargaining power” or “mutuality of obligation”

respecting the provision. Additionally, counsel for Golovoy stated, “it’s clear that this—if the [trial

court] has any inclination to agree with their forum selection clause that’s robbing [the trial court]

of the ability to adjudicate the case, then there needs to be full briefing on it.” Finally, Golovoy (1)




                                                 —6-
contended the rules o I civi procedure do not require a verified complaint in order to obtain a

temporary restraining order “unless you don’t give notice and (2) argued his complaint was verified

and he had “submitted all the evidence that is necessary for the [trial court] to riecide this issue

today.”

          Counsel for relators asserted. jilter a/ia, their arguments described above. Further, relators

contended Golovoy had not met the verification requirements of Texas Rules of Civil Procedure 680

and 682 because “(here’s no verified or sworn evidence of any of the elements for a TRO or

injunctive relief” See TEX. R. Civ. P. 680, 682.

          On November 15, 2012, Golovoy filed a letter from Briscoe to the trial court “to clarify

which provisions of the [Business Combination Agreement] result in the Poison Pill Lockup’

discussed in plaintiffs’ TRO papers.” The letter stated “[t]here are two relevant provisions: (I)

section 3.3(v), which “carves out the merger between Meti-o PCS and [DT/T—Mobile] from

application of I MetroP(S’s] Rights Agreement, or Poison Pill”and (2) section 4.5(b)(iv). which

“precludes the Metro PCS modifying the Poison Pill to carving other potential competing proposal

from application of [MetroPCS’s] Poison Pill.” Further, the letter stated

          Plaintiff’s TRO motion seeks to suspend operation of the Poison Pill in its entirety.
          Doing so would not require any amendment to the [Business Combination
          Agreement], it would just restrain the relevant parties, as described in the proposed
          TRO order, from issuing the “Rights” connection with the “Rights Agreement,” and
          thus restrain the triggering of the Poison Pill.

          On that same date, relators filed(l ) a “postargument submission” in opposition to Golovoy’s

motion and (2) objections to Golovoy’s proposed order. Relators’ objections included, in part, the

following:

          1. The proposed order does not contain a ruling on (i) Defendants’ objections and
          Motion to Stay contained in the MetroPCS Defendants’ Opposition to Plaintiffs’
          Motion for Temporary Restraining Order and Expedited Discovery (the
          “Opposition”). The MetroPCS Defendants object to the Court’s failure and refusal
         to rule on their objections and requests contained in the Opposition.

         2. The proposed order is issued without a court determination that venue is proper or
         that Plaintiffs have standing.

         3. The proposed order contains’ actia findings without any evidentiary support. The
         relief granted requires evidentiary support.

         4. The proposed order seeks to enjoin the MetroPCS Defendants from taking action
         under the Rights Agreement, which is not in evidence. The Business Combination
         Agreement cannot serve as evidence of the Rights Agreement.

         In response, Golovoy filed a letter from Briscoe to the trial court in which Briscoe stated in

part, “There is no reason why the [trial court] cannot rule on the TRO now and address the

stay/dismissal issues later.”

         In the TRO, the trial court stated, in part, as follows:

                 The Court finds that harm is imminent to Plaintiffs and if the Court does not
         issue the Temporary Restraining Order, Plaintiffs will be irreparably injured because
         of the Individual Defendants’ implementation and maintenance of [MetroPCS’s]
         shareholder rights plan (the “Poison Pill”) and the inclusion of the “force the vote”
         provision in §4.5(h) of the Business Combination Agreement as deal protection
         devices, in conjunction with other defensive measures, to eliminate potential
         acquirers from making a competitive and superior bid for [MetroPCS], or any other
         offer that would have been made absent the adoption and maintenance of the
         defensive measures.

Additionally, the TRO stated, “This Order shall not be effective unless and until Plaintiffs execute

and file with the County Clerk a Bond in conformity with the law in the amount of $500,000.00.”

(emphasis original).
          4

        This mandamus proceeding followed.

                        Ii. RELATORS’ REQUEST FOR MANDAMUS RELIEF

                                                      A. Applicable Law

        Mandamus will issue if the relator establishes a clear abuse of discretion for which there is


    The record does not show a bond has been filed,




                                                            —8—
no adequate remedy by appeal. In re Odyssey Hen flhcare, Inc., 310 S.W.3d 419, 422 (Tex, 201 0)

tong procLeding) In te Deeie & Co 299 S W 3d 819 820 (fex 2009) (oiig proccLdlng) In re

Prudential Ins, Co. ofAm., 148 S.W.3d 124, 135—36 (Tex. 2004) (orig, proceeding). A trial court

abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and

prejudicial ermr of law or if it clearly fails to correctly analyze or apply the law. In re Cerberus

C’apitalMgmt., L.P.. 164 S,W.3d 379, 382 (Tex. 2005) (orig. proceeding); In re Tex. Am. Express,

Inc., 190 S,W.3d 720, 723 (Tex. App.—Dallas 2005, orig. proceeding); see In re Jorden, 249

S.W.3d 416, 424 (Tex. 200$) (orig. proceeding) (“[a] trial or appellate court has no discretion in

determining what the law is or in applying the law to the facts, even if the law is somewhat

unsettled.”). In determining whether appeal is an adequate remedy, we consider whether the benefits

outweigh the detriments of mandamus review. In re BP Prods. N.Am., Inc., 244 S.W.3d 840, 845

(Tex. 2008) (orig. proceeding); see also In re GulfExploration, 289 S.W.3d 836, 842 (Tex. 2009)

(orig proceeding) ( Fheu. is no definitive list of when an appeal will be ‘adequate, as       it   depends

on a careful balance of the casespecific benefits and detriments of delaying or interrupting a

particular proceeding.”).

                                              B. Analysis

                                        1. Abuse of Discretion

        In four issues, relators contend the trial court abused its discretion by (1) “granting [the TRO]

and ordering a temporary injunction hearing despite a pending motion to dismiss based on a

mandatory exclusive forum selection clause in [MetroPCS ‘s] bylaws requiring that this case be heard

only in the Delaware Court of Chancery”; (2) “refusing to rule on Relators’ Motion to Stay the case

until after a ruling on the Motion to Dismiss raising the issue of the mandatory exclusive forum

selection provision”; (3) “granting a temporary restraining order without any verified facts, affidavits




                                                  —9—
or other evidence supporting the findings in the lR( ) ( )rder or establishing a valid claim, probable

ri2ht of recovery, or any imminent irreparable harm, in violation oil LX, R. CiV. P. 6 2’’ and (4)

“enjoining contractual provisions that are expressly permitted by controlling Delaware law,” We

consider these issues in turn.

                 a. Satisfaction of Requirements For lemporary Restraining Order

        First, we address relators’ third issue. in which they contend the TRO was granted in

violation of Texas Rule of Civil Procedure 682. (iolovoy responds “[t]he trial          Court   correctly

concluded that because Texas Rule of Civil Procedure 680 and not Rule 682 addresses temporary

restraining orders, and because notice was given, no verified petition or evidence was necessary”

Further. Golovoy asserts that “even if a verified petition and/or evidence were a necessary

prerequisite fbr issuance of a TRO, both were present here.” Specifically, Golovoy argues he

submitted “a verification for his petition through his attorneys” and “also submitted evidence at the

hearing, in the form ofthe Business Combination Agreement that set forth the relevant provision that

Plaintiff was seeking to enjoin, the Poison Pill Lock—Up and the force the vote provision.’

        Section five of the Texas Rules of Civil Procedure is titled “Injunctions” and contains rules

680 through 693a. See TEx. R. Civ. P. 680--693a. Rule 682, titled “Sworn Petition,” provides “[n]o

writ of injunction shall be granted unless the applicant therefor shall present his petition to thejudge

verified by his affidavit and containing a plain and intelligible statement of the grounds for such

relief” TEx. R. Civ. P. 682.” Verified by his affidavit” means “proved to be true or correct.” City

ofArlington v. Dallas-Fort Worth Saftv Coach Co., 270 S.W. 1094, 1095 (Tex. Civ. App.—Fort

Worth 1925, no writ). “It has been held that the verification must be direct and in such positive

terms as would sustain a charge of perjury or false swearing, if the verification should prove to be

false, and the affidavit must show to have been made on the personal knowledge of the affiant as to




                                                 -10
the truth of the allegations verified” Id. Rule 680, titled “Temporary Restraining Order,” provides

in part that “[n]o temporary restraining order shall be granted without notice to the adverse party

unless it clearly appears from specific facts shown by affidavit or by the verified complaint that

immediate and irreparable injury, loss, or damage will result to the applicant before notice can be

served and a hearing had thereon.” Tgx. R. Civ, P. 680.

           According to Golovoy, (1) rule 682 “addresses writs of injunctions, not temporary restraining

orders” and (2> rule 680 “provides that a TRO may issue without a verified petition or an evidentiary

showing of irreparable harm as long as notice of the TRO is provided to the adverse party.”

l-lowever, while rule 680 provides specific requirements pertaining to granting a temporary

restraining order without notice, that rule does not mention or specifically address situations in which

notice respecting a temporary restraining order has been provided to an adverse party. TEx. R. Civ.

P. 680. Further, “[a] temporary restraining order is basically a writ of injunction within the meaning

of TEX, R. CIV. P.682.” Williams v. Bagley, $75 S.W.2d 808, 810 (Tex. App.—Beaumont 1994,

no writ); see Spakes v. Weher, No. l0-08-00313-CV, 2010 WL 139955, at *3 (Tex. App.—Waco

Jan. 13, 2010, pet. denied) (mem. op.) (“A temporary restraining order is one of three forms of

injunctions which may be issued by a court.”). Additionally, rule 687, which sets forth the requisites

for a “writ of injunction,” provides specific requirements in the event such “writ of injunction” is

a “temporary restraining order.” TEx. R. Civ. P. 687(e). Accordingly, we cannot agree with Golovoy

that a temporary restraining order is not a “writ of injunction” subject to the requirements of rule

682.’

           Further, on this record, we cannot conclude Golovoy met the requirements of rule 682. Even



       In support ofhis position, Golovoy cites Town of Palm Valley V. .Johnson, 17 S. W.3d 281, 288 (Tex. App.—Cous Christi 2000, pet. denied)
for the proposition that ‘[al verified petition for injunctive relief is not required
                                                                                ...   when a full evidentiary hearing on evidence independent of the
petition has been [heIdi.” However, the record supplied to us shows no such “full evidentiary hearing” was held in the case before us, and Johnson
is therefore inapposite, See Id.




                                                                     —Il—
assuming without deciding that his petition was properly verified, the petition did not address or

mention the “poison pill lockup or the “force the vote provision’— the two “deal protection

devices (iolovov        sought   to restrain via his motion for a temporary restraining orde r—---nor did the

petition request the injunctive relief that was the subject of his motion. Therefore. Golovoy’s

petition did not contain “a plain and intelligible statement of the grounds’ for his requeste(l

temporary restraining order. See TEx. R. (‘iv. P. 62. In an affidavit pertaining to Golovoy’s motion

for a temporary restraining order and order compelling expedited discovery, Briscoe stated in part,

“I have personal knowledge of the matters stated herein and, if called upon, I could and would

competently testify thereto.” Additionally, Briscoe (1) stated that “a true and correct copy” of the

Business Combination Agreementwas attached and (2) declared “under penalty of perjury” that “the

fhregoing is true and correct.’ Briscoc’s affidavit, at most, authenticated the Business Combination

Agreement. See Dallas—Port Worth Sa/tr (ac’/i Co., 270 S.W. at 1095.

        Golovoy asserts in his response in this Court that “[e]vidence of the Poison Pill

Lockup—--what Relators prefer to call the “Rights Agreement”—-was in the record.” Further,

according to Golovoy, “[t]he trial court concluded that the collective effect of the provisions were

operating to preclude competing bidders from emerging, and depriving shareholders of receiving a

premium for their shares” and “[t]hat is sufficient under the law to support a conclusion of

irreparable harm.” In support of his position, (iolovoy cites (1) argument by his counsel during the

hearing on his motion and (2) a Delaware case, Police & Fire Ret. Svs. v. Bernal, No. 4663-CC, 2009

WL 1873144, at *2 (Del. Ch. June 26, 2009). Golovy does not explain, and the record does not

show, how argument by his counsel at the hearing constitutes “evidence.” Further, unlike the case

before us, Bernal involved a motion to expedite proceedings pertaining to a request for injunctive

relief. Jd. at   *
                     1. The court in Bernal did not address the requirements for granting a temporary
restraining order, See id. Consequently., we do not find Bernal persuasive.

        While the authenticated Business Combination Agreement attached to Briscoe’s affidavit

shows the terms of the proposed business combination, it does not show the effect of such terms or

demonstrate that any other potential bidders have been deterred, as argued by Golovoy. Further, the

l3usiness Combination Agreement does not contain the MetroPCS “Rights Agreement, dated as of

March 29, 2007,” which Golovoy described in his motion as the “Poison Pill” and sought to suspend

in its entirety. The record shows no verified facts or evidence other than the Business Combination

Agreement to support the TRO. Therefore, we conclude the trial court abused its discretion by

granting the TRO. See Tux. R. Civ, P. 682: see also Operation I?escue-Nat 7. v. Planned Parenthood

of Houston & Se. Tex., 975 S.W.2d 546, 560 (Tex. 199$) (“a trial court has no discretion to grant

injunctive relief.., without supporting evidence.”).

        We decide in favor of relators on their third issue. In light of our disposition of relators’ third

issue, we need not address relators’ fourth issue.

                            b. Priority as to Relators’ Motion to Dismiss

        Next, we consider together relators’ first and second issues, in which they assert the trial

court abused its discretion by (1) not staying Golovoy’ s motion for a temporary restraining order and

order compelling expedited discovery until after deciding relators’ Motion to Dismiss pursuant to

the “mandatory exclusive forum selection provision” and (2) refusing to rule on relators’ Motion to

Stay.

        Golovoy responds in part that “no abuse of discretion can be attributed to the trial court for

deferring a ruling on an unsettled, non-jurisdictional legal issue that was not even before the trial

court, to address the more immediate concerns of irreparable harm raised by Plaintiff’s TRO, which

was the only issue set for hearing that day.”




                                                  —13—
       The Texas Supreme Court has consistently granted petitions for writ ofmandamus to enforce

forum selection clauses because a trial court that improperly refuses to enforce such a clause has

clearly abused its discretion. hi reALMS hivestor Servs.. Inc.. 304 S.W.3d 371, 374 (Tex. 2010)

(orig. proceeding) (citing In re AIU Ins. Co., 148 S.W.3d 109, 114—15 (Tex. 2004) (orig.

proceeding)); see In reLisa Laser USA, Inc., 310 S.W.3d 880, 883 (Tex. 2010) (orig. proceeding)

(“A trial court abuses its discretion when it fails to properly interpret or apply a forum-selection

clause.”) (citing hi re Laibe Coip.. 307 S.W.3d 314 (Tex. 2010) (orig. proceeding)); accord hi re

AutoNation, 228 S.W.3d 663,667—70 (Tex. 2007) (orig. proceeding).

       hi re AuloNation involved a suit filed in Florida by relator AutoNation, Inc. against Garrick

Hatfield to enforce a covenant not to compete. See 228 S.W.3d at 664. In the employment contract

containing the covenant, AutoNation and Hatfield had agreed to litigate any disputes arising under

the contract in Florida under Florida law. Id. Hatfield later sued AutoNation in Texas under the

contract. Id. The Texas trial court declined to dismiss or stay the Texas action and enjoined

AutoNation from pursuing its Florida lawsuit Id. AutoNation filed a notice ofaccelerated appeal

ofthe trial court’s injunction order, and the following week it filed a petition for writ of mandamus

in the court of appeals. Id. at 666. The court ofappeals denied mandamus reliefon grounds that an

adequate remedy at law was available to AutoNation, namely its earlier-filed interlocutory appeal.

Id. AutoNation filed a petition for writ of mandamus in the Texas Supreme Court, seeking relief

from the anti-suit injunction and dismissal or abatement ofthe entire case pursuant to the mandatory

forum selection clause. IS The court of appeals proceeded to decide and issue an opinion in the

interlocutory appeal of the injunction order, concluding “[blecause the Texas Supreme Court has

held that flmdamental Texas public policy requires application of Texas law to the question of

enforceability of a non-compete agreement, we are unable to hold that the trial court abused its



                                               -14-
discretion in issuing an injunction to halt the Florida proceeding and allow the Texas case to proceed

to triaL” Id, at 667.

        The supreme court conditionally granted AutoNation’s petition for writ of mandamus. Id.

The supreme court observed that “‘[s]ubjecting a party to trial in a forum other than that agreed upon

and requiring an appeal to vindicate the rights granted in a forum-selection clause is clear

harassment’—harassment that injures not just the non-breaching party but the broader judicial

system, injecting inefficiency by enabling forum-shopping, wasting judicial resources, delaying

adjudication on the merits, and skewing settlement dynamics contrary to the parties! contracted-for

expectations.” Id. at 667—68. Further, the supreme court stated that its decisions regarding the

propriety of mandamus relief in forum-selection cases comport with the principle that parties

generally have the freedom to negotiate agreements as they see fit. Id. at 66$. The court concluded

that under controlling precedents on forum-selection clauses, the parties’ bargained-for agreement

merits judicial respect, and the dispute should be heard in the Florida action as the parties contracted.

Id. at 669 (citing In re Automated Collection Tech., Inc., 156 S.W.3d 557 (Tex. 2004) (orig.

proceeding); in reAIUJns. Co., 148 S.W.3d at 109).

        in the case before us, relators’ Motion to Dismiss and Motion to Stay were filed prior to the

hearing on Golovoy’s motion for a temporary restraining order and order compelling expedited

discovery. Further, the forum selection provision in question was addressed by both Golovoy and

relators during the hearing and in the parties’ post-hearing filings, which included an objection by

relators to the trial court’s failure to rule on their objections and Motion to Stay. The record does

not show the trial court ruled on the Motion to Dismiss or the Motion to Stay before signing the

TRO. On this record, we conclude the trial court abused its discretion by granting injunctive relief

without first ruling on relators’ motions respecting the forum selection clause in question. See id.




                                                 —15—
at 668—70: see a/so In re Boehme. 256 S.W.3d 87%. 880 (Tex. App.—Houston [14th Dist.] 2008,

orig. proceeding) (mandamus relief granted to overturn temporary injunction order and dismiss case

based on forum selection clause).

            We decide in favor of relators on their first and second issues.
                                                                     6

                                                           2. Adequate Remedy

            Finally, we address relators’ assertion that they lack an adequate remedy by appeal. Relators

argue “[a]llowing the TRO Order to stand, and allowing the temporary injunction hearing to proceed

as ordered, deprives Relators of the benefits of the forum selection clause, violates the requirement

that injunctive relief be supported by prooi maintains a clear and prejudicial error of law, and

interferes with a multi-billion dollar transaction and itself could cause irreparable harni to the many

MetroPCS stockholders who have not complained and those who honored the Bylaws’ provision for

any litigation to occur in Delaware.” Thus, relators contend, the benefits of mandamus review

outweigh any detriments.

            Golovoy argues “[t]here arc no urgent circumstances present here justifying the extraordinary

remedy of a writ of mandamus.” Specifically, according to Golovoy, because he has not yet

executed and filed a bond as required by the TRO, “the TRO Order is not ripe for judicial review by

this Court.” Additionally, Golovoy asserts “because it is unknown how the trial court will rule on

defendants’ Motion to Dismiss or Stay, Relators’ application for mandamus is premature.”

            In support of his argument that the TRO is “not ripe,” Golovoy cites to a “concurring

statement” involving a criminal case. See Lizcano v. C’hatharn, No. WR-68,348-02, 2011 WL

4596044, at *1_2 (Tex. Crim. App. Oct. 5, 2011) (orig. proceeding). However, unlike the case


    6
        To the extent relstors’ first issue is construed to raise the merits of the arguments asseed in their Motion to Dismiss respecting the validity
of the forum selection provision in question, we conclude mandamus relief respecting that portion of relators’ first issue is not available because the
trial court has not yet had a hearing orruled on the Motion to Dismiss. See In re Sierra Club, No. 08—I 2 00236-—C V. 2012 WL 5942912, at *4 (Tex.
        -hi Paso Nov. 28. 0 2, orig. proceeding).




                                                                       --16—
before us, Lin.uno involved a discovery order the court concluded was “vague.” See Id. Because

Lizcano is distinguishable on its facts, we do not find it persuasive. In the case before us, the record

shows the trial court has signed the TRO. Golovoy cites no authority, and we have found none.

supporting the position that, on these fads, the TRO is “not ripe.” Further, while the record does not

show a ruling on relators’ Motion to Dismiss or Motion to Stay, the relief requested by relators in

this Court pertains to obtaining a ruling on those motions before moving forward with other matters

in the case. ‘[bus, we cannot agree with Golovoy that the fact that it is unknown how the trial court

will ultimately rule on relators’ motions renders their petition for writ of mandamus “premature.”

       Generally. “an appellate remedy is inadequate when a trial court improperly refuses to

enforce a forum-selection clause because allowing the thai to go forward will ‘vitiate and render

illusory the subject matter of an appeal’—i.e., trial in the proper forum.” In re Lisa Lacer, 310

S.W.3d at 883 (citing In reAlU Ins. Co., 148 S.W.3d at 115); see In reAuto Nation, 228 S.W.3d at

668 (failure to enforce contractual forum selection clause “constitutes a clear abuse ofdiscretion for

which there is no adequate remedy by appeal”) (citing In re Automated Collection Tech., Inc.. 156

S.W.3d at 558). Further, the Texas Supreme Court has stated that because temporary restraining

orders are not appealable, a party agiinst whom a temporary restraining order has been granted has

“no remedy by appeal.” In re Office ofAttorney Gen., 257 S.W.3d 695,697—98 (rex. 2008) (orig.

proceeding); see Hamilton Guar. Capital, LLCv. Orphan House Prods., LLC,No. 05-I 1-01401-CV.

2012 WL 2359881, at *1 (Ta. App.—Dallas June 21, 2012, no pet.) (mem. op.).

       In the case before us, the record shows the trial court granted Golovoy’s motion for a

temporary restraining order and set a temporary injunction hearing without deciding relators’

pending motions respecting enforcement ofthe forum selection provision in question. Accordingly,

on this record, we conclude relators lack an adequate remedy by appeal. See In re Lisa Lacer, 310



                                                —17—
S.W.3d at 883; hi re Q/Jice ofAtiornev (len.. 257 S.W.3d at 697—98; hi re AntoNotlo,,, 228 S.W.3d

at 668; hi ri’ Auiwnaiecl C’olkction Tech., Inc. 156 S.W.3d at 558; hi re AIU Ins. C’o., 148 S.W.3d

at 115; Lf In re Team Rocket, L.P.. 256 S.W.3d 257.262 (Tex. 2008) (orig. proceeding) (mandamus

relief proper where trial court “subjects taxpayers, defendants, and.   .   .   the state’s district courts to

meaningless proceedings and trials” by “ma[king] no effort to follow” venue nile).

                                       Ill. CONCLUSION

        We decide in favor of relators on their first, second, and third issues. We need not address

relators’ fourth issue.

        Because we conclude relators have shown the trial court abused its discretion and they have

no adequate remedy by appeal, we conditionally grant relators’ petition for writ of mandamus. A

writ will issue only in the event the trial court fails to (1) vacate the November 16, 2012 TRO,

including, the setting for the temporary injunction hearing on November 29, 2012; (2) deny

Golovoy’s motion for a temporary restraining order; and (3) grant relators’ motion to stay the case

until relators’ Motion to Dismiss is decided.


                                                       DOUGLA       .LANG



121577F.P05




                                                -18-
