Opinion
06-22-00017-CV
05-19-2022
IN RE WALMART INC.
Date Submitted: May 18, 2022
Original Mandamus Proceeding
Before Morriss, C.J., Stevens and Carter, [*] JJ.
MEMORANDUM OPINION
Jack Carter Justice
Fintiv, Inc., sued Walmart, Inc., for misappropriation of trade secrets in a Texas court. Alleging that Fintiv contractually agreed to a mandatory forum-selection clause requiring it to litigate in Arkansas, Walmart moved to dismiss all claims against it. By its petition for a writ of mandamus, Walmart complains of the trial court's denial of its motion to dismiss. Because we find that the forum-selection clause must be enforced, we conditionally grant the petition for a writ of mandamus.
Affinity Global Services, LLC, and Mozido, Inc., are predecessors to Fintiv, Inc. For ease of reference, we refer to these entities as "Fintiv."
I. Standard of Review
"We issue mandamus 'only when the mandamus record establishes (1) a clear abuse of discretion or the violation of a duty imposed by law, and (2) the absence of a clear and adequate remedy at law.'" Walmart v. Fintiv, No. 06-20-00071-CV, 2021 WL 3572728, at *11 (Tex. App.-Texarkana Aug. 13, 2021, orig. proceeding) (mem. op.) (quoting In re Blakeney, 254 S.W.3d 659, 661 (Tex. App.-Texarkana 2008, orig. proceeding) (citing Cantu v. Longoria, 878 S.W.2d 131 (Tex. 1994) (per curiam) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) (orig. proceeding))). "When a trial court 'clearly fails to correctly analyze or apply the law,' it abuses its discretion." Id. (quoting In re Olshan Found. Repair Co., 328 S.W.3d 883, 888 (Tex. 2010) (orig. proceeding)).
"Mandamus relief is available to enforce forum-selection agreements because there is no adequate remedy by appeal when a trial court abuses its discretion by refusing to enforce a valid forum-selection clause that covers the dispute." Id. (quoting In re Int'l Profit Assocs., Inc., 274 S.W.3d 672, 675 (Tex. 2009) (citing In re Lyon Fin. Servs., Inc., 257 S.W.3d 228, 231 (Tex. 2008) (per curiam) (orig. proceeding))); see In re AutoNation, Inc., 228 S.W.3d 663, 667 (Tex. 2007) (orig. proceeding) ("Mandamus relief is available to enforce forum-selection clauses.").
"Forum selection clauses allow parties 'to contractually preselect the jurisdiction for dispute resolution.'" Fintiv, 2021 WL 3572728, at *10 (quoting Pinto Tech. Ventures, L.P. v. Sheldon, 526 S.W.3d 428, 436 (Tex. 2017) (citing In re AIU Ins. Co., 148 S.W.3d 109, 111 (Tex. 2004) (orig. proceeding))). "[I]n Texas, forum-selection clauses are generally enforceable and 'should be given full effect.'" Id. (quoting Pinto Tech. Ventures, 526 S.W.3d at 436). As a result,
A trial court abuses its discretion if it refuses to enforce a forum-selection clause unless the party opposing enforcement clearly shows that (1) the clause is invalid for reasons of fraud or overreaching, (2) enforcement would be unreasonable or unjust, (3) enforcement would contravene a strong public policy of the forum where the suit was brought, or (4) the selected forum would be seriously inconvenient for trial.In re Killick Aerospace Ltd., No. 02-20-00280-CV, 2020 WL 7639575, at *3 (Tex. App.-Fort Worth Dec. 23, 2020, orig. proceeding) (mem. op.) (citing In re Int'l Profit Assocs., 274 S.W.3d at 675). "[A] party attempting to show that such a clause should not be enforced bears a heavy burden." Id. (quoting In re Int'l Profit Assocs., 274 S.W.3d at 675).
II. Factual and Procedural Background
Fintiv "is a multinational technology company that designs, develops, and provides mobile commerce and payment solutions globally." It alleges that Walmart misappropriated its trade secrets in developing Walmart Pay in 2015. A history of Fintiv and Walmart's dealings illuminates the dispute at issue.
Daniel Eckert, senior vice president of Walmart Services and Digital Acceleration, said that Walmart began exploring the possibility of developing a mobile application for customers and was considering contracting with a third party to develop it. In 2008, Fintiv and Walmart entered into an agreement (the 2008 NDA) establishing the following non-disclosure obligations:
a) The Recipient, for a period beginning with the Effective Date, and continuing for three (3) years from the cessation of unsuccessful negotiations or the consummation of the Services (by execution of the relevant document(s)), whichever occurs first, shall maintain and protect the confidentiality of the Confidential Information with the same degree of care as is normally used in the protection of its own confidential and proprietary information but in no event with less than a reasonable standard of care. The Recipient further agrees not to use Confidential Information for any purpose, except for purposes related to the Services.The 2008 NDA described "entering into a potential business arrangement" as the "Services." The 2008 NDA also contained the following paragraph, which forms the basis of Walmart's complaint that the parties agreed to litigate in Arkansas:
Choice Of Law. The Parties mutually acknowledge and agree that this Agreement shall be construed and enforced in accordance with the laws of the state of Arkansas. The Parties agree and consent to the exclusive jurisdiction of the state and federal courts of Arkansas to resolve any dispute arising from this Agreement and waive any defense of inconvenient or improper forum.
"Texas law applies in original proceedings in which the parties seek to enforce a forum-selection clause, even if the contract also contains a choice-of-law clause selecting the application of another state's substantive law." In re Bambu Franchising LLC, No. 05-17-00690-CV, 2017 WL 4003428, at *2 (Tex. App.-Dallas Sept. 12, 2017, orig. proceeding) (mem. op.) (citing In re Lisa Laser USA, Inc., 310 S.W.3d 880, 883 n.2 (Tex. 2010) (orig. proceeding) (per curiam)).
While the 2008 NDA was in effect, Fintiv and Walmart met several times to negotiate the partnership opportunity. Fintiv's Randall Lund, a member of the team that developed a mobile wallet platform, presented the technology to Walmart executives in 2010 and swore to the following facts:
During [an] August 30, 2010[, ] meeting in Dallas, I shared with Walmart [Fintiv]'s trade secrets and other confidential information related to [Fintiv]'s mobile wallet platform, including mobile wallet payment systems. I also participated in the meeting where several use cases were presented to Walmart, including [Fintiv]'s mobile wallet platform's ability to facilitate point-of-sale purchases at Walmart stores using a mobile wallet stored on a customer's mobile device.
. . . . During the August 30, 2010[, ] meeting in Dallas, my team and I educated Walmart's executives on mobile wallet technology and how it works. This information included [Fintiv]'s trade secrets and other confidential information. The confidential information disclosed at this meeting included technology and information used for a mobile payment wallet platform . . . .
Despite its efforts, Eckert said that Fintiv was not selected to develop a mobile application for Walmart and that Walmart chose a different company, Obopay, in late 2010 to begin discovery for an anticipated mobile application internally called "MWallet." Even so, Eckert swore that Walmart ultimately decided not to pursue full development of MWallet, which has never been implemented. The non-disclosure obligations in the 2008 NDA were effective "three (3) years from the cessation of unsuccessful negotiations." Because Obopay, not Fintiv, was selected in 2010, Fintiv alleged that the non-disclosure obligations in the 2008 NDA expired in December 2013.
Walmart argues that, even if non-disclosure obligations expired in December 2013, the forum-selection clause has no expiration date. However, the 2008 NDA reads, in relevant part:
2. Non-Disclosure Obligations.
a) The Recipient, for a period beginning with the Effective Date, and continuing for three (3) years from the cessation of unsuccessful negotiations . . . shall maintain and protect the confidentiality of the Confidential Information[.]
. . . .
8. Choice Of Law ..... The Parties agree and consent to the exclusive jurisdiction of the state and federal courts of Arkansas to resolve any dispute arising from this Agreement and waive any defense of inconvenient or improper forum.A plain reading of the 2008 NDA shows that only the non-disclosure obligations expired after the three-year period. As a result, while the duty to "maintain and protect the confidentiality of the Confidential Information" and promise not to use it "except for purposes related to the Services" expired, the forum-selection clause that "addresse[d] the forum in which the parties [would] litigate any future disputes arising [from]" the 2008 NDA did not expire. Deep Water Slender Wells, Ltd. v. Shell Int'l Expl. & Prod., Inc., 234 S.W.3d 679, 691 (Tex. App.-Houston [14th Dist.] 2007, pet. denied) (citing Tex. Source Grp., Inc. v. CCH, Inc., 967 F.Supp. 234, 238-39 (S.D.Tex. 1997) (enforcing forum-selection clause even though prior agreement that contained the forum-selection clause had expired by its own terms before the lawsuit was filed); Strata Heights Int'l Corp. v. Petroleo Brasileiro, S.A., Nos. 02-20645 & 02-20767, 2003 WL 21145663, at *1, *6-7 (5th Cir. Apr. 28, 2003) (same)).
After the unfruitful 2010 negotiations, Eckert said that, in 2012 or 2013, Fintiv "tried to become engaged in a project called Merchant Customer Exchange, or 'MCX, '" which was "a company created by a consortium of U.S. retailers, including Walmart." The record showed that Fintiv met with "Walmart/MCX" in 2012, but Fintiv's president, Michael Love, and Fintiv's Filipe Fernandez testified that they did not remember attending any meetings with Walmart after September 2012. Fintiv argues that, during the 2012 meetings, Fintiv disclosed its trade secrets, "which expanded upon existing QR code technology to include functions such as applying loyalty promotional items, and encrypting credit card information, as well as the innovation of using single use tokens." MCX considered, but did not retain Fintiv, and MCX was ultimately unsuccessful. Eckert said that Walmart did not use any product or technology developed by MCX.
Instead, Walmart began to develop Walmart Pay in 2015. According to Eckert, the development of Walmart Pay was performed by engineering teams in Walmart's offices in California, Oregon, and Arkansas, with assistance from a small team in Sweden. Believing that its confidential information was used to develop Walmart Pay, Fintiv sued Walmart.
Fintiv's original petition alleged, "This action arises from Walmart's infringement and misappropriation of Fintiv's trade secrets and confidential information Fintiv shared with Walmart under a series of binding nondisclosure agreements [including] . . . 'the 2008 NDA.'" The petition said (1) that Fintiv had provided Walmart with confidential information "[d]uring a long-standing business relationship" in which "Fintiv and Walmart jointly scoped a mobile wallet, called MWallet," (2) that intellectual property and trade secrets were disclosed to Walmart "under the Fintiv-Walmart NDAs," and (3) that, "[u]nbeknownst to Fintiv, . . . Walmart was working with a different mobile wallet company, which Walmart chose to hire." Fintiv asserted that its technology provided the "know-how to form the basis of Walmart's knowledge in the mobile payment technology area."
Although Fintiv alleged that other nondisclosure agreements were executed in 2000 and 2011, its amended petition noted that they "d[id] not appear to have been fully executed." They are not relevant to our analysis.
Fintiv alleged that venue was proper under Section 15.002(a)(1) of the Texas Civil Practice and Remedies Code because a substantial part of the events or omissions giving rise to Fintiv's claims occurred in Harrison County, where Walmart maintained "Supercenters" and "engaged in tortious acts and other purposeful acts by virtue of providing Walmart Pay to Harrison County, Texas, residents . . . which caused serious harm and damage to Fintiv."
Walmart immediately argued that the case was required to be filed in Arkansas. Fintiv then filed an amended petition, which again referenced the 2008 NDA. In the amended petition, Fintiv said that it developed MWallet in 2008 for Walmart and delivered to Walmart the MWallet proprietary business model and product offering. The amended petition described several meetings between Fintiv and Walmart in 2009, 2010, and 2012. It also alleged that Walmart exercised substantial control over MCX, that MCX was Walmart's agent, and that Walmart had instructed Fintiv to continue the discussions regarding Fintiv's technology with MCX. It added an allegation that, "[a]t the end of 2013, Walmart again directed Fintiv to talk to MCX in Dallas." The allegation continued, "Discussions with Walmart/MCX continued through February 2014, when Walmart announced it would partner with Paydiant instead of Fintiv."
Because it involves the merits, we express no opinion about Fintiv's claim that MCX was Walmart's agent.
In a supplemental motion to dismiss, Walmart argued that the 2008 Agreement governed the dispute because it remained effective during the 2012 meetings in which Fintiv disclosed its trade secrets. As a result, it argued that Fintiv had "agree[d] and consent[ed] to the exclusive jurisdiction of the state and federal courts of Arkansas to resolve any dispute arising from" the 2008 NDA. Fintiv responded that the 2008 NDA had expired in December 2013, that it was not alleging any breach of contract claim, and that, as a result, the forum-selection clause did not govern the dispute. After hearing these and other arguments, the trial court denied Walmart's motion to dismiss.
Walmart also argued that it did not control MCX, which was a consortium of merchants that included Target, Home Depot, McDonald's, Lowe's, Burger King, and others.
III. The Forum-Selection Clause Applied to Fintiv's Dispute
"In examining whether claims brought by the plaintiff were within the scope of the clauses, . . . a reviewing court should engage in a 'common-sense examination of the claims and the forum-selection clause to determine if the clause covers the claims.'" In re Lisa Laser USA, Inc., 310 S.W.3d 880, 884 (Tex. 2010) (per curiam) (orig. proceeding) (quoting In re Int'l Profit Assocs., 274 S.W.3d at 677). "[W]hether claims seek a direct benefit from a contract turns on the substance of the claim, not artful pleading." Id. (quoting In re Int'l Profit Assocs., 274 S.W.3d at 677); see Pinto Tech. Ventures, L.P. v. Sheldon, 526 S.W.3d 428, 433 (Tex. 2017) ("[W]hether a forum-selection clause applies depends on the factual allegations undergirding the party's claims rather than the legal causes of action asserted."). As a result, we are to "avoid 'slavish adherence to a contract/tort distinction,' because doing otherwise 'would allow a litigant to avoid a forum-selection clause with 'artful pleading.'" Pinto Tech. Ventures, 526 S.W.3d at 437 (quoting In re Int'l Profit Assocs., 274 S.W.3d at 677). "Legal theories and causes of action are not controlling." Id.
"[A] claim is brought in contract if liability arises from the contract, while a claim is brought in tort if liability is derived from other general obligations imposed by law." Id. (quoting In re Int'l Profit Assocs., 274 S.W.3d at 677) (citing In re Weekley Homes, L.P., 180 S.W.3d 127, 131-32 (Tex. 2005)).
"The starting point of the inquiry is the forum-selection clause's language." Id. In the 2008 NDA, Fintiv and Walmart agreed that Arkansas courts would have exclusive jurisdiction "to resolve any dispute arising from th[e] [2008 NDA]." As a result, we must first decide whether Fintiv's claims are matters arising from the 2008 NDA. If so, "the forum selection clause is enforceable in the underlying proceeding" unless Fintiv established "an exception to the general rule of enforceability." In re Bambu Franchising LLC, No. 05-17-00690-CV, 2017 WL 4003428, at *2 (Tex. App.-Dallas Sept. 12, 2017, orig. proceeding) (mem. op.).
The forum-selection clause's use of the term "any dispute" means that it is broad in its scope. "[D]ispute" is "defined as '[a] conflict or controversy, esp. one that has given rise to a particular lawsuit.'" Pinto Tech. Ventures, 526 S.W.3d at 439 (citation omitted) (second alteration in original). "'Claim,' on the other hand, means 'the assertion of an existing right' or '[a] demand for money, property, or a legal remedy to which one asserts a right.'" Id. (citations omitted). "When a forum-selection clause encompasses all 'disputes' 'arising out of' the agreement, instead of 'claims,' its scope is necessarily broader than claims based solely on rights originating exclusively from the contract." Id.
Next, "[d]ictionaries define 'arise' to mean 'to originate from a specified source,' 'to stem (from),' and '[t]o result (from).'" Id. at 437 (citations omitted). Just as the Texas Supreme Court has found the words "arising out of" to have "broad[] significance," we find that the phrase "arising from" is equally broad. Id. (citing In re NEXT Fin. Grp., 271 S.W.3d 263, 268 (Tex. 2008) (per curiam) (orig. proceeding)); see In re Lisa Laser USA, 310 S.W.3d at 885 (finding a forum-selection clause in a sales contract "describe[d] a scope broader than the mere sales transactions" when it "state[d] that California shall be the forum 'over any dispute arising out of this agreement,' not merely any dispute arising out of any particular sale").
Moreover, where a party would "have no basis to complain" "but for the Agreement," a party's "claims arise out of the Agreement." Pinto Tech. Ventures, 526 S.W.3d at 438 (quoting In re Lisa Laser USA, 310 S.W.3d at 886). In examining this dispute, a but-for relationship is evident. Fintiv and Walmart's longstanding business relationship was made possible through the execution of non-disclosure agreements, including the 2008 NDA. But for the 2008 NDA, Fintiv would not have provided Walmart with the trade secrets it complains Walmart appropriated. See In re Int'l Profit Assocs., 274 S.W.3d at 678 (applying forum-selection clause after noting that plaintiff "claim[ed] no relationship with [defendant] apart from the [consulting] contracts). Walmart's duty to protect Fintiv's confidential information and trade secrets did not expire until as early as December 2013, and a majority of Fintiv's complaints relate to misappropriation of trade secrets disclosed at that time. Perhaps for this reason, Fintiv's original petition alleged, "This action arises from Walmart's infringement and misappropriation of Fintiv's trade secrets and confidential information Fintiv shared with Walmart under a series of binding nondisclosure agreements [including] . . . the 2008 NDA." (Emphasis added). The amended petition again referenced the 2008 NDA, alleged that it delivered the MWallet proprietary business model and product offering under the protections of the 2008 NDA, and outlined meetings at which trade secrets were discussed while the 2008 NDA was in effect.
We may look to original and amended petitions in determining whether a plaintiff has attempted to circumvent a forum-selection clause through artful pleading. See In re Killick Aerospace Ltd., No. 02-20-00280-CV, 2020 WL 7639575, at *4 (Tex. App.-Fort Worth Dec. 23, 2020, no pet.) (mem. op.).
Also, as for Fintiv's argument that the forum-selection clause did not apply because it did not allege a breach of contract claim, we find that Fintiv's choice not to sue Walmart for breach of contract has no bearing on the question of whether the forum-selection clause applies. When a plaintiff "characterize[s] its claim as a statutory or common-law tort claim to evade the agreed-upon forum despite essential allegations that are 'inextricably enmeshed' or 'factually intertwined' with the underlying contract," "the forum-selection clause should be denied force only 'if the facts alleged in support of the claim stand alone, are completely independent of the contract, and the claim could be maintained without reference to the contract.'" Pinto Tech. Ventures, 526 S.W.3d at 440 (quoting AutoNation USA Corp. v. Leroy, 105 S.W.3d 190, 194-95 (Tex. App.-Houston [14th Dist.] 2003, no pet.)). This is because "[w]e cannot accept the invitation to reward attempts to evade enforcement of forum selection agreements through artful pleading of tort claims in the context of a contract dispute." Id. (quoting Lambert v. Kysar, 983 F.2d 1110, 1121 (1st Cir. 1993) ("punctuation removed")).
Here, the facts alleged in support of Fintiv's claims are not completely independent because "[a] contract claim . . . implicating these issues would involve the same operative facts as statutory and common-law tort claims addressing the same matters." Id. at 441. Fintiv's amended petition (1) asserted that Walmart violated the Texas Uniform Trade Secrets Act, as described by Section 134A.003 of the Texas Civil Practice and Remedies Code, and (2) sought exemplary damages under "willful and malicious misappropriation of Fintiv's trade secrets" under Section 134A.004. See Tex. Civ. Prac. & Rem. Code Ann. § 134A.003-.004. To obtain relief under Chapter 134A, Fintiv was required to show that Walmart misappropriated trade secrets. The term "misappropriation" is defined as
(A) acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means; or
(B) disclosure or use of a trade secret of another without express or implied consent by a person who: (i) used improper means to acquire knowledge of the trade secret; (ii) at the time of disclosure or use, knew or had reason to know that the person's knowledge of the trade secret was:
(a) derived from or through a person who used improper means to acquire the trade secret;
(b) acquired under circumstances giving rise to a duty to maintain the secrecy of or limit the use of the trade secret; or
(c) derived from or through a person who owed a duty to the person seeking relief to maintain the secrecy of or limit the use of the trade secret; or
(iii) before a material change of the position of the person, knew or had reason to know that the trade secret was a trade secret and that knowledge of the trade secret had been acquired by accident or mistake.Tex. Civ. Prac. & Rem. Code Ann. § 134A.002(3). Thus, to prove the claims asserted in the amended petition, Fintiv would have to establish that Walmart possessed or used trade secrets that were acquired by improper means or disclosed without its express or implied consent. See In re Killick Aerospace Ltd., 2020 WL 7639575, at *4. Because resolution of those issues would require reference to the 2008 NDA to determine Walmart's permissions and obligations with respect to the trade secrets, the claims against Walmart were connected and factually intertwined with the 2008 NDA. See id. (concluding that removal of a breach of contract claim in an amended petition requesting injunctive relief on claims of misappropriating trade secrets and violating the Texas Uniform Trade Secrets Act did not save plaintiffs from the application of a contractual forum-selection clause because "the trier of fact would necessarily have to look at the distribution agreements to determine whether [plaintiff] had consented to the possession and use of the allegedly misappropriated trade secrets and confidential and proprietary information").
Even so, Fintiv argues that the forum-selection clause did not apply for several reasons. First, Fintiv argues that the clause does not apply because it alleged that "Walmart used Dallas-based MCX to secure trade secret information from Fintiv, in a deliberate effort to circumvent its obligations under the 2008 NDA." This argument requires examination of the 2008 NDA to determine Walmart's obligations to resolve the issue of whether they were circumvented.Second, Walmart argues that it began mobile payment discussions between 2011 and 2014 that were separate from the ones contemplated by the 2008 NDA after Obopay was chosen. Because the 2008 NDA did not expire until December 2013 at the earliest, and the "Services" under the contract were defined as "entering into a potential business arrangement," the resolution of the question of whether Fintiv's 2011 through 2013 discussions fell within the scope of the 2008 NDA require examination of the NDA. See In re Int'l Profit Assocs., 274 S.W.3d at 678 (rejecting plaintiff's argument that claims related to defendant's recommendation to hire employee who embezzled funds were outside the scope of a consulting contract that did not call for defendant to make employment recommendations because the "[t]he agreement d[id] not draw a bright-line limit on the scope of work to be performed"). Also, Fintiv alleged that it developed MWallet technology in 2008, which was delivered to Walmart, and the amended petition complains of misappropriation of this same technology. As a result, regardless of the timing of the disclosures, it appears that the heart of Fintiv's dispute involves technology shared with Walmart under the 2008 NDA. Third, Fintiv argues that some of the discussions clearly fell outside of the 2008 NDA's expiration date. Even so, because the forum-selection clause applied to any dispute arising from the 2008 NDA, "its scope [wa]s necessarily broader than claims based solely on rights originating exclusively from the contract." Pinto Tech. Ventures, 526 S.W.3d at 439 (citation omitted).
We note that Fintiv argues that disclosures made to MCX fall outside the realm of the 2008 NDA, but they have also pled that MCX was Walmart's agent and that the non-disclosure provisions in the 2008 NDA also apply to Walmart's agents. Moreover, "the Texas Supreme Court has rejected the notion that a forum-selection clause can be defeated by the presence of non-signatories to the agreement." In re Emex Holdings L.L.C., No. 13-11-00145-CV, 2013 WL 1683614, at *6 (Tex. App.-Corpus Christi Apr. 18, 2013, orig. proceeding) (mem. op. on reconsideration) (citing In re Int'l Profit Assocs., Inc., 274 S.W.3d at 680 ("If all it takes to avoid a forum-selection clause is to join as defendants local residents who are not parties to the agreement, then forum-selection clauses will be of little value.").
Fintiv also notes that it signed a separate nondisclosure agreement with MCX that does not have a forum-selection clause. Even so, Fintiv has not sued MCX and instead argues that it is Walmart's agent.
Fintiv also alleged that the “core” of its “digital commerce technology is Fintiv's proprietary MoTEAFTM (Mobile Transaction Ecosystem Architecture Framework), a plug-and-play technology platform designed to support the various technology and process platforms using open application programming interfaces.” The original petition said, “Fintiv and Walmart jointly scoped a mobile wallet, called MWallet, which utilized MoTEAFTM as a means to extend Walmart Financial Services product offerings to mobile payments” “Fintiv disclosed its intellectual properly and/or proprietary trade secrets to Walmart under the Fintiv-Walmart NDAs.” The amended petition established that MoTEAFTM was presented before December 2013.
After conducting a "common-sense examination" of Fintiv's petitions and the forum-selection clause, we conclude that Fintiv's complaints constituted a "dispute arising from" the 2008 NDA. See In re Lisa Laser USA, 310 S.W.3d at 884. As a result, the forum-selection clause applied to Fintiv's dispute, and Fintiv bore a heavy burden to show that the clause was invalid for reasons of fraud or overreaching, enforcement of the 2008 NDA would be unreasonable or unjust, enforcement would contravene a strong public policy of the state of Texas, or Arkansas would be seriously inconvenient for trial. See In re Killick Aerospace Ltd., 2020 WL 7639575, at *3. Fintiv's brief sets forth no argument on these matters, and as a result, we find that it failed to meet its burden to show that the forum-selection clause should not be applied.
IV. Conclusion
Because the forum-selection clause governed Fintiv's dispute, we conditionally grant Walmart's petition for a writ of mandamus and direct the trial court to vacate its order and grant Walmart's motion to dismiss. We are confident that the trial court will comply, and the writ will issue only if it fails to do so.
[*]Jack Carter, Justice, Retired, Sitting by Assignment