Opinion issued July 26, 2012




                                     In The

                               Court of Appeals
                                    For The

                         First District of Texas
                          ————————————
                               NO. 01-12-00341-CV
                           ———————————
                  IN RE HAYNES AND BOONE, LLP AND
                      PATRICK L. HUGHES, Relators



           Original Proceeding on Petition for Writ of Mandamus



                                  OPINION

      This original proceeding concerns a legal malpractice claim relating to the

handling of an antitrust matter.1 The relators, Haynes and Boone, LLP and Patrick



1
      At the time relators filed their mandamus petition, the underlying case was
      styled Rx.com, Inc. and Joe S. Rosson v. John M. O’Quinn & Associates,
      PLLC d/b/a The O’Quinn Law Firm, John M. O’Quinn & Associates, L.L.P.,
      Laminack, Pirtle & Martines, L.L.P., Richard M. Laminack, Thomas W.
      Pirtle, Haynes & Boone, L.L.P., and Patrick Hughes, No. 2010-66863, in
L. Hughes, are defendants in the malpractice suit. The real parties in interest,

Rx.com, Inc. and its founder Joe S. Rosson, filed the suit alleging that the relators

(and others) harmed them by failing to timely file an antitrust suit within the

limitations period.

      The relators contend that the suit presents embedded federal issues in the

form of Sherman Act claims which must be proved to prevail on the malpractice

cause of action and thus constitute a “case within the case.” These federal issues

are the basis for relators’ invocation of exclusive federal subject-matter jurisdiction

over the malpractice claim. They thus argue that Texas state courts lack subject-

matter jurisdiction to entertain such claims. These arguments were presented in a

plea to the jurisdiction, which the trial court denied. The relators then filed a

petition for writ of mandamus to seek review of that ruling.

      We conclude that the trial court correctly denied the plea and that Texas

courts may exercise jurisdiction over legal malpractice claims related to antitrust

matters. Accordingly, we deny the petition.

                                    Background

      Prior to the filing of the malpractice suit at issue in this original proceeding,

Rx.com filed an antitrust complaint in federal district court against various

pharmacy benefit manager defendants. In addition to state-law claims that were

      the 80th Judicial District of Harris County, Texas. The respondent is the
      Honorable Larry Weiman.
                                          2
later abandoned, the complaint included three causes of action under the Sherman

Act: agreement in restraint of trade in violation of Section 1; conspiracy to

monopolize in violation of Section 2; and attempted monopolization in violation of

Section 2. See 15 U.S.C. §§ 1, 2. The antitrust suit was dismissed on limitations

grounds, and the Fifth Circuit Court of Appeals affirmed that judgment on appeal.

See Rx.com v. Medco Health Solutions, Inc., 322 Fed. Appx. 394 (5th Cir. 2009).

      The real parties in interest sued Rx.com’s former lawyers, including the

relators, for legal malpractice in connection with the failure to timely file the

antitrust suit. The petition was originally filed in a Texas state district court. The

defendants removed the case to federal court, arguing that federal-question

jurisdiction applied to the legal malpractice claims because of embedded federal

questions relating to the original antitrust claims. See Rx.com, Inc. v. O’Quinn,

766 F. Supp. 2d 790, 793 (S.D. Tex. 2011). The federal district court analyzed the

question of whether the legal malpractice claims were ones “arising under” federal

law, 28 U.S.C. § 1331, applying the standard articulated by the United States

Supreme Court in Grable & Sons Metal Products, Inc. v. Darue Engineering &

Manufacturing, 545 U.S. 308, 125 S. Ct. 2363 (2005), and considering whether the

malpractice claims “necessarily raise a stated federal issue [that is] actually

disputed and substantial, which a federal forum may entertain without disturbing

any congressionally approved balance of federal and state judicial responsibilities.”

                                          3
Rx.com, 766 F. Supp. 2d at 794 (quoting Grable, 545 U.S. at 314, 125 S. Ct. at

2368). Relying in significant measure upon the Fifth Circuit’s application of the

Grable standard to a legal malpractice claim in Singh v. Duane Morris LLP, 538

F.3d 334 (5th Cir. 2008), the federal court concluded that two of the necessary

elements—a substantial federal interest and a lack of disruption to the balance of

federal and state judicial responsibilities—were not present. Accordingly, the

federal district court found that federal-question jurisdiction did not exist, and the

case was remanded to state court. See Rx.com, 766 F. Supp. 2d at 797.

      Following the remand to state court, two new opinions were issued in other

cases, which the relators contend provided supervening authority to support their

contention that the case belongs in federal court.         In USPPS, Ltd. v. Avery

Dennison Corp.—a case in which federal subject-matter jurisdiction was

apparently undisputed due to the diversity of the parties—the Fifth Circuit applied

the Grable test to determine that a state-law legal malpractice claim arose under

federal patent law so as to invoke the exclusive appellate jurisdiction of the Federal

Circuit.2 Accordingly, the USPPS appeal was transferred to the Federal Circuit.3



2
      See USPPS, Ltd. v. Avery Dennison Corp., 647 F.3d 274, 277–82 (5th Cir.
      2011); 28 U.S.C. § 1295(a)(1) (“The United States Court of Appeals for the
      Federal Circuit shall have exclusive jurisdiction . . . of an appeal from a final
      decision of a district court of the United States . . . in any civil action arising
      under . . . any Act of Congress relating to patents . . . .”).

                                           4
      Then the Supreme Court of Texas held, in Minton v. Gunn, that the federal

courts have exclusive subject-matter jurisdiction over a malpractice claim arising

out of legal representation in a patent infringement action. See 355 S.W.3d 634,

646 (Tex. 2011), petition for cert. filed, No. 11-1118 (U.S. Mar. 9, 2012). The

Minton case originated in state court and was dismissed on a motion for summary

judgment. See id. at 638. However, in addition to granting federal jurisdiction

over cases arising under federal patent law, 28 U.S.C. § 1338(a) also specifically

prohibits state courts from exercising jurisdiction over the same category of cases.4

The claimant thus raised a subject-matter jurisdiction objection on appeal, and that

argument was ultimately vindicated by the Supreme Court, which concluded,


3
      See USPPS, 647 F.3d at 284. Notably, two judges of the Federal Circuit
      subsequently concurred in the judgment affirming the trial court in USPPS
      while noting their disagreement with their court’s precedents applying
      Grable, which they characterized as turning what “would otherwise be a
      ‘clearly wrong’ transfer decision into one that is ‘plausible,’” thus requiring
      their court “to accept the transfer and resolve the merits of the appeal.” Id.
      at 1350 (O’Malley, J., concurring) (quoting Christianson v. Colt Indus.
      Operating Corp., 486 U.S. 800, 817–19, 108 S. Ct. 2166, 2178–79 (1988)).
4
      See 28 U.S.C. § 1338(a) (“No State court shall have jurisdiction over any
      claim for relief arising under any Act of Congress relating to patents . . . .”).
      This statute, expressly depriving state courts of jurisdiction over claims
      arising under federal patent law, was amended in 2011. See Act of Sept. 16,
      2011, § 19(a), 125 Stat. 331. The prior version of the statute provided: “The
      district courts shall have original jurisdiction of any civil action arising
      under any Act of Congress relating to patents . . . . Such jurisdiction shall be
      exclusive of the courts of the states in patent . . . cases.” Act of June 25,
      1948, ch. 646, 62 Stat. 931.

                                          5
“based upon the specific facts of this case,”5 that the embedded federal question

“triggered exclusive federal patent jurisdiction,” requiring dismissal of the case

without considering its merits. Minton, 355 S.W.3d at 646-47.

      Relying primarily on USPPS and Minton, the relators re-urged their

arguments in the trial court by filing a plea to the jurisdiction. As part of the

argument presented to the trial court, the relators contended that “determining

whether Rx.com would have prevailed will entail litigation of the full panoply of

factual and legal issues attending to a Sherman Act claim.” The trial court denied

the plea,6 and the relators filed their mandamus petition, seeking relief from the

trial court’s continuing exercise of subject-matter jurisdiction over the case.


5
      The Supreme Court specifically disavowed a broad interpretation of its
      holding such that “all legal malpractice suits arising out of patent litigation”
      might be considered “to fall under the exclusive patent law jurisdiction of
      the federal courts.” Minton v. Gunn, 355 S.W.3d 634, 646 (Tex. 2011),
      petition for cert. filed, No. 11-1118 (U.S. Mar. 9, 2012). The Court
      indicated that “any state litigant asserting a legal malpractice action to
      recover for damages resulting from his patent attorney’s negligence in patent
      prosecution or litigation must also satisfy all four elements of the Grable test
      to place his claim under exclusive federal jurisdiction.” Id.
6
      The relators filed a motion in the trial court to stay proceedings pending our
      resolution of the mandamus petition, and in that context the parties disputed
      the significance of our request for a response to the relators’ petition.
      Mandamus relief (other than temporary relief) cannot be granted unless the
      court receives or requests a response. TEX. R. APP. P. 52.4. But regardless
      of whether the court has preliminarily decided that a petition may be
      meritorious, a response often aids the efficient use of judicial resources by
      inviting the real party in interest to offer its own legal analysis and
      perspective of the challenged action. Accordingly, the mere request for a
                                           6
                                       Analysis

      A party requesting mandamus relief must meet two requirements. First, it

must show that the trial court clearly abused its discretion. In re Prudential Ins.

Co., 148 S.W.3d 124, 135 (Tex. 2004) (orig. proceeding). Second, it must show

that it has no adequate remedy by appeal. Id. at 135–36. The relators carry the

burden of demonstrating their right to mandamus relief. See Canadian Helicopters

Ltd. v. Wittig, 876 S.W.2d 304, 305 (Tex. 1994) (orig. proceeding).

      We will focus our analysis on the relators’ contention that the trial court has

abused its discretion by exercising subject-matter jurisdiction over this legal

malpractice case. The relators’ arguments rely on USPPS and Minton, as well as

other cases involving legal malpractice in the patent-law context,7 as precedents for

applying the Grable standard to determine when a state-law cause of action “arises

under” federal law because of an embedded federal issue.




      response does not imply any preliminary judgment about the merits of the
      petition. Rule 52.8 does not suggest otherwise—that rule provides that “[i]f
      the court is of the tentative opinion that relator is entitled to the relief sought
      or that a serious question concerning the relief requires further
      consideration . . . the court must request a response if one has not been
      filed.” TEX. R. APP. P. 52.8(b)(1) (emphasis supplied).
7
      E.g., Air Measurement Techs., Inc. v. Akin Gump Strauss Hauer & Feld,
      L.L.P., 504 F.3d 1262 (Fed. Cir. 2007); Immunocept, LLC v. Fulbright &
      Jaworski, LLP, 504 F.3d 1281 (Fed. Cir. 2007).

                                           7
      As explained below, the relators’ argument wrongly assumes the relevance

in this circumstance of the “arising under” standard as applied in Grable and its

progeny. Because there is no nexus between the “arising under” standard and the

question of whether federal courts have exclusive jurisdiction over the embedded

federal antitrust issues, we reject relators’ suggestion that the Grable standard

provides the appropriate frame of analysis. Instead, applying the standard of Gulf

Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, 101 S. Ct. 2870 (1981), we

conclude that the legal authorities establishing federal jurisdiction to decide federal

antitrust claims do not preclude state courts from exercising jurisdiction over state-

law malpractice claims with embedded federal antitrust issues.

I.    Grable and its specific application relating to patent law

      In Grable, the United States Supreme Court analyzed whether the claim

presented in that case was one “arising under the Constitution, laws, or treaties of

the United States” for purposes of federal-question jurisdiction as provided in 28

U.S.C. § 1331. The claim at issue was a suit to quiet title originally filed in state

court, and it was subsequently removed to federal court on the grounds that the

case presented a question of federal tax law. Grable, 545 U.S. at 311, 125 S. Ct. at

2366. If the case could have been originally brought in federal district court, then

removal of the case from state court to federal court was proper under 28 U.S.C.

§ 1441(a). See id. at 312, 125 S. Ct. at 2366. Under Grable, in order for a state-

                                          8
law claim with an embedded federal question to “aris[e] under the Constitution,

laws, or treaties of the United States” such that federal courts have subject-matter

jurisdiction over that claim pursuant to section 1331, the state-law claim must

(1) raise a stated federal issue that is (2) actually disputed and (3) substantial,

which a federal forum may entertain without disturbing any congressionally

approved balance of federal and state judicial responsibilities. See id. at 314, 125

S. Ct. at 2368.

      Because Grable is an application of the “arising under” standard of 28

U.S.C. § 1331, the rule articulated in that case has special application with respect

to patent cases, as federal courts have exclusive jurisdiction over all cases “arising

under” patent law pursuant to 28 U.S.C. § 1338(a), and the “arising under”

language of that statute has been interpreted to apply in the same way that it does

for purposes of section 1331.8 Thus, the United States Court of Appeals for the

Federal Circuit has applied the Grable standard to determine whether patent issues

embedded within state-law legal malpractice claims arose under federal patent law,

so as to permit federal courts to exercise jurisdiction over the claims.9 The Federal


8
      See Christianson, 486 U.S. at 808–09, 108 S. Ct. at 2173–74; Air
      Measurement, 504 F.3d at 1271.
9
      In Air Measurement Technologies, Inc. v. Akin Gump Strauss Hauer & Feld,
      L.L.P., a legal malpractice claim was removed from state court, and the
      plaintiffs appealed the interlocutory decision to deny a remand back to state
      court. See 504 F.3d 1262, 1265 (Fed. Cir. 2007). The federal district court
                                          9
Circuit precedents in this area have concerned whether federal courts could

exercise subject-matter jurisdiction over the state-law legal malpractice claims, and

they have not been directly concerned with whether the state courts could exercise

concurrent jurisdiction over such claims.

      The authority of a state court to exercise jurisdiction over a legal malpractice

claim involving patent issues was the central issue presented in Minton v. Gunn.

Minton is procedurally distinguishable from the Federal Circuit precedents because

it involved Texas state courts deciding whether a legal malpractice claim arose

under federal patent law, not to determine whether a federal court could exercise

jurisdiction over the claim, but to determine whether the state courts were

forbidden from exercising jurisdiction over the claim. In contrast to section 1331,

which merely describes an affirmative grant of power for federal courts to exercise




      applied the Grable test to determine that legal malpractice claim arose under
      patent law for purposes of 28 U.S.C. § 1338(a). See id. at 1267. Because
      the Federal Circuit agreed that federal jurisdiction could be exercised
      pursuant to § 1338(a), the district court’s refusal to remand the case was
      affirmed. See id. at 1273; see also 28 U.S.C. § 1447(c) (“If at any time
      before final judgment it appears that the district court lacks subject matter
      jurisdiction, the case shall be remanded.”). Similarly, the Federal Circuit
      found that 28 U.S.C. § 1338(a) jurisdiction could be exercised over another
      legal malpractice claim involving federal patent issues in Immunocept, LLC
      v. Fulbright & Jaworski, LLP, 504 F.3d 1281 (Fed. Cir. 2007).

                                         10
jurisdiction over cases “arising under” federal law,10 section 1338(a) both grants

power for federal courts to exercise jurisdiction over cases “arising under” patent

law11 and also has a converse effect on the jurisdiction of state courts, which are

specifically forbidden from exercising jurisdiction over the same scope of claims.12

Thus the issue presented in Minton was not merely whether the federal courts were

authorized to exercise jurisdiction over the claim. That issue had to be considered,

but only as a necessary part of the analysis of whether the state courts were

prohibited by section 1338(a) from exercising jurisdiction over the claim. The

Supreme Court of Texas applied the Grable test and held in Minton that the

particular legal malpractice claim at issue arose under federal patent law. Because

federal jurisdiction is exclusive over claims arising under federal patent law, 28

U.S.C. § 1338(a), the state courts could not exercise subject-matter jurisdiction.

      The relators in this original proceeding present yet a different scenario.

Their argument is similar to the issue presented in Minton, insofar as we are asked

10
      See 28 U.S.C. § 1331 (“The district courts shall have original jurisdiction of
      all civil actions arising under the Constitution, laws, or treaties of the United
      States.”).
11
      See 28 U.S.C. § 1338(a) (“The district courts shall have original jurisdiction
      of any civil action arising under any Act of Congress relating to patents,
      plant variety protection, copyrights and trademarks.”).
12
      See id. (“No State court shall have jurisdiction over any claim for relief
      arising under any Act of Congress relating to patents, plant variety
      protection, or copyrights.”).

                                         11
to decide whether the state courts are forbidden from exercising jurisdiction over a

state-law legal malpractice claim because of an embedded federal question.

However, the embedded federal issue in this case involves antitrust law instead of

patent law. Accordingly, the Grable analysis is only relevant to this proceeding if,

as in the context of patent law, state courts are forbidden to exercise jurisdiction

over any claims “arising under” federal antitrust law.

II.   Presumed concurrent jurisdiction of state courts

      “The general principle of state-court jurisdiction over cases arising under

federal laws is straightforward: state courts may assume subject-matter jurisdiction

over a federal cause of action absent provision by Congress to the contrary or

disabling incompatibility between the federal claim and state-court adjudication.”

Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, 477–78, 101 S. Ct. 2870, 2875

(1981). We begin our analysis with “the presumption that state courts enjoy

concurrent jurisdiction.” Id. at 478, 101 S. Ct. at 2875. Jurisdiction may be

exclusively confined to the federal courts by either explicit or implicit

Congressional directive. See id. Thus, the Supreme Court of the United States has

held that “the presumption of concurrent jurisdiction can be rebutted by an explicit

statutory directive, by unmistakable implication from legislative history, or by a

clear incompatibility between state-court jurisdiction and federal interests.” Id.;

see also Tafflin v. Levitt, 493 U.S. 455, 459-60, 110 S. Ct. 792, 795 (1990).

                                         12
      Relators have produced no authority that Congress explicitly granted federal

courts exclusive jurisdiction of all cases “arising under” the federal antitrust laws.

Congress did grant federal district courts “original jurisdiction of any civil action

or proceeding arising under any Act of Congress regulating commerce or

protecting trade and commerce against restraints and monopolies.” 28 U.S.C.

§ 1337(a). In addition, the Clayton Act authorizes a private cause of action to be

pursued in federal court for injury to “business or property by reason of anything

forbidden in the antitrust laws,” 15 U.S.C. § 15(a), including the specific right to

seek “injunctive relief . . . against threatened loss or damage by a violation of the

antitrust laws,” 15 U.S.C. § 26. With specific reference to the Clayton Act’s

authorization of injunctive relief to be obtained from “any court of the United

States having jurisdiction over the parties,” the Supreme Court has stated that

“[t]his right to sue . . . is granted in terms which show that it is to be exercised only

in a ‘court of the United States.’” Gen. Inv. Co. v. Lake Shore & M.S. Ry. Co., 260

U.S. 261, 287, 43 S. Ct. 106, 117 (1922). Subsequent cases have relied on General

Investment for the proposition that federal antitrust claims are within the exclusive

jurisdiction of the federal courts,13 despite suggestions14 that this rule appears to be


13
      E.g., Marrese v. Am. Acad. of Orthopaedic Surgeons, 470 U.S. 373, 379,
      105 S. Ct. 1327, 1331 (1985); see also Miller v. Granados, 529 F.2d 393,
      395 (5th Cir. 1976) (“[T]he jurisdiction conferred by Congress on federal
      courts under the Sherman Act is exclusive.”).

                                           13
at odds with the modern understanding that “[i]t is black letter law . . . that the

mere grant of jurisdiction to a federal court does not operate to oust a state court

from concurrent jurisdiction over the cause of action.” Gulf Offshore, 453 U.S. at

479, 101 S. Ct. at 2875–76; see also Martinez v. California, 444 U.S. 277, 283 n.7,

100 S. Ct. 553, 558 n.7 (1980).

      The principle that “federal antitrust claims are within the exclusive

jurisdiction of the federal courts” only has been suggested in connection with

actual federal antitrust causes of action, and the relators have provided us no

example of the rule ever being applied to the broader universe of all claims

“arising under” federal antitrust law.15 Nor have the relators demonstrated any


14
      See, e.g., Tafflin v. Levitt, 493 U.S. 455, 470–71, 110 S. Ct. 792, 801 (1990)
      (Scalia, J., concurring) (characterizing the analysis in General Investment as
      “less than compelling”); Vill. of Bolingbrook v. Citizens Utils. Co., 864 F.2d
      481, 484–85 (7th Cir. 1988) (“One may doubt whether in light of Mitsubishi
      [Motors Corp. v. Soler Chrysler–Plymouth, Inc., 473 U.S. 614, 105 S. Ct.
      3346 (1985)] antitrust is still an exclusive province of the federal courts.”).
15
      All of the case law provided to us by the relators involved or otherwise made
      specific reference to federal antitrust causes of action. See Tafflin, 493 U.S.
      at 462, 110 S. Ct. at 796–97 (in context of holding that state courts have
      concurrent jurisdiction over civil RICO actions, noting that the Supreme
      Court has “interpreted § 4 of the Clayton Act to confer exclusive jurisdiction
      on the federal courts” (citing Gen. Inv., 260 U.S. at 286–88, 43 S. Ct. at
      116–17)); Marrese, 470 U.S. 373, 379 (in context of holding that a federal
      court must consider “the preclusive effect of a state court judgment in a
      subsequent lawsuit involving federal antitrust claims within the exclusive
      jurisdiction of the federal courts,” noting that “[a]lthough federal antitrust
      claims are within the exclusive jurisdiction of the federal courts [citing
      General Investment], the Court of Appeals ruled that the dismissal of
                                         14
alternative basis for inferring that scope of exclusive federal jurisdiction based

upon an “unmistakable implication from legislative history,” or “a clear

incompatibility between state-court jurisdiction and federal interests.”16       Gulf

Offshore, 453 U.S. at 478, 101 S. Ct. at 2875. To the contrary, legal scholarship

suggests that “[t]he legislative history of the Sherman Act indicates that exclusive

jurisdiction was not intended.” Note, Exclusive Jurisdiction of the Federal Courts

in Private Civil Actions, 70 HARV. L. REV. 509, 510 n.13 (1957) (citing S. Doc.

      petitioners’ complaints in state court barred them from bringing a claim
      based on the same facts under the Sherman Act”); Hathorn v. Lovorn, 457
      U.S. 255, 266 n.18, 102 S. Ct. 2421, 2429 n.18 (1982) (in context of holding
      that state courts are authorized to decide whether the Voting Rights Act
      applies to a proposed change in voting procedures, noting that “although
      state courts lack jurisdiction to entertain suits brought pursuant to § 4 of the
      Clayton Act, 15 U.S.C. § 15, they often decide issues concerning the federal
      antitrust laws in other contexts”); Freeman v. Bee Mach. Co., 319 U.S. 448,
      450, 63 S. Ct. 1146, 1147 (1943) (after contract claim was removed to
      federal court, “respondent moved to amend its declaration by adding a
      complaint for treble damages under § 4 of the Clayton Act”); Blumenstock
      Bros. Advertising Agency v. Curtis Pub. Co., 252 U.S. 436, 441, 40 S. Ct.
      389, 387 (1920) (in context of suit for treble damages under § 7 of the
      Sherman Act, observing that “the controversy concerns subject-matter
      limited by federal law, for which recovery can be had only in the federal
      courts”).
16
      The relators’ petition focuses on the Grable test and its consideration of
      whether the exercise of federal jurisdiction over an overlying state-law claim
      would disturb “any congressionally approved balance of federal and state
      judicial responsibilities.” Grable, 545 U.S. at 314, 125 S. Ct. 2368; Minton,
      355 S.W.3d at 640. Accordingly, their arguments are oriented towards
      justifying the federal interest in adjudicating the claim. The more
      appropriate question is whether state courts may exercise their presumed
      concurrent jurisdiction without offending some federal interest.

                                         15
No. 147, 57th Cong., 2d Sess. 311–13, 317, 320–21, 334 (1903)).             And we

perceive no clear incompatibility between state-court jurisdiction over the legal

malpractice claim at issue and federal interests. The cardinal policy undergirding

the Sherman Act is maximizing consumer welfare through the promotion of

economic competition.17 By contrast, the policy undergirding the state-law tort of

legal malpractice is to compensate an injured private party for its losses. See Akin,

Gump, Strauss, Hauer & Feld, L.L.P. v. Nat’l Dev. & Research Corp., 299 S.W.3d

106, 122 (Tex. 2009). State-court adjudication of claims alleging injuries resulting

from legal malpractice does not threaten to undermine the federal interest in

preventing restraints on free competition.

      The claims at issue in this case are state-law malpractice claims, and they are

not causes of action created or specifically authorized by federal antitrust laws.18

An analysis applying Grable and Minton would inform the question of whether the

malpractice claim may “arise under” federal antitrust law pursuant to 28 U.S.C.

§ 1337(a) and therefore be a candidate for concurrent federal subject-matter


17
      See, e.g., Am. Needle, Inc. v. Nat’l Football League, 130 S. Ct. 2201, 2212
      (2010); Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877,
      886, 127 S. Ct. 2705, 2713 (2007); see generally ROBERT H. BORK, THE
      ANTITRUST PARADOX 50–71 (1993 ed.).
18
      Cf. Wilshire Oil Co. v. Riffe, 409 F.2d 1277, 1284 (10th Cir. 1969)
      (distinguishing federal antitrust claim from employer’s common-law right to
      recover antitrust fine from employees whose conduct occasioned the fine).

                                         16
jurisdiction. But absent authority that state courts are prohibited from exercising

jurisdiction over all claims “arising under” federal antitrust law, the Grable

analysis does not determine whether the malpractice claim is subject to exclusive

federal jurisdiction.   The relators thus have made no showing that federal

jurisdiction over these claims is exclusive to federal courts to the exclusion of

otherwise presumed concurrent state-court jurisdiction.

      We conclude that the relators have failed to demonstrate a clear abuse of the

trial court’s discretion. See Canadian Helicopters, 876 S.W.2d at 305; Walker,

827 S.W.2d at 837. To the contrary, we conclude that the trial court is properly

exercising jurisdiction over the state-law malpractice claim.19




19
      We also note that a conclusion that federal courts have exclusive subject-
      matter jurisdiction over this malpractice claim would be diametrically
      opposed to the prior ruling in this same dispute that “federal question
      jurisdiction does not exist in this case, and removal was not proper on this
      basis.” Rx.com, Inc. v. O’Quinn, 766 F. Supp. 2d 790, 793, 797 (S.D. Tex.
      2011). If we granted the relief sought by the relators, the real parties in
      interest would face the circumstance of having to re-file their claims in
      federal district court after one federal district judge has already ruled that
      there is no federal subject-matter jurisdiction over the claim. A federal
      court—perhaps even the same federal district judge—might then be forced
      to either exercise jurisdiction or effectively leave the real parties judicially
      homeless, shunned by both state and federal courts refusing to exercise
      jurisdiction to resolve their claims on the merits. Such “jurisdictional ping-
      pong” is undesirable due to its tendency to “undermine public confidence in
      our judiciary” and “squander private and public resources.” Christianson,
      486 U.S. at 818–19, 108 S. Ct. at 2179.

                                         17
                                   Conclusion

      We conclude that Texas courts are not prohibited from exercising

jurisdiction over the state-law legal malpractice claims in this case. Because we

conclude that no clear abuse of discretion has been shown, we express no opinion

about what circumstances would permit a private litigant to obtain review of the

denial of a plea to the jurisdiction by means of a petition for writ of mandamus due

to the alleged inadequacy of the remedy of appeal from a final judgment.

      Accordingly, we deny the petition for writ of mandamus.




                                             Michael Massengale
                                             Justice


Panel consists of Justices Massengale, Brown, and Huddle.

Justice Brown, concurring.




                                        18
