Five questions are doctrinally open. Each will be tested in the first generation of post-reincorporation litigation; counsel should track the Texas Business Court docket and the Nevada Supreme Court’s reach in NRS § 78.138 cases for resolution.
- Does TBOC § 21.419 displace entire-fairness review at the motion-to-dismiss stage in controller-affiliated transactions? Or does common-law gap-filling under Texas equity practice preserve it? No Texas appellate decision has resolved this question as of the date of this page.
- Does Nevada’s NRS § 78.138(7) survive a Caremark-equivalent oversight challenge? Auditor and internal-control obligations under Exchange Act § 10A and Sarbanes-Oxley § 404 are federal issuer-compliance duties, not state-law fiduciary duties, and are not a substitute for a Caremark-type cause of action; the Nevada Supreme Court has not directly resolved how oversight claims fare under § 78.138(7).
- Are forum-selection clauses adopted contemporaneously with reincorporation enforceable against pre-reincorporation claims? Or do such claims travel with the Delaware forum-selection bylaw in effect at accrual? The accrual-date analysis is contested.
- Does federal preemption — under Securities Act § 14 (anti-waiver), Exchange Act § 29(a) (anti-waiver), or the federal-forum-provision doctrine of Salzberg — limit TX/NV state-law forum-selection bylaws as applied to federal-securities claims? Federal-jurisdictional preservation is the operative principle; the application is claim-specific.
- Does the internal-affairs doctrine as articulated in Edgar v. MITE and CTS Corp. limit Texas’s authority to apply TBOC § 21.552 to companies headquartered outside Texas but reincorporated in Texas? And does the dormant Commerce Clause provide a separate constraint? Neither defense has been adjudicated against SB 29; Gusinsky did not reach them.