Industry sponsors of clinical research are always putting such statements into contracts. We just tell them that we require them to either remove the sentence or replace it with our own state's name. When asked (which is rare) I tell them I can not be expected to be familiar with the laws of another state and cannot guarantee compliance with another state's laws. To be honest, I have always been able to just have the entire sentence or paragraph removed. Kari Hastings ---------- From: Martha M. Taylor [SMTP:xxxxxx@MAIL.AUBURN.EDU] Sent: Friday, March 31, 2000 1:01 PM To: xxxxxx@HRINET.ORG Subject: venue, jurisdiction, and laws of another state I recognize that not all public institutions have the same constraints placed on them by their state constitution or governing board but I think what may be discussed on this topic through this list will benefit several people who have questions about liability, sovereignty, venue and jurisdiction. We have the following in our state constitution: "The State of Alabama shall not be made a defendant in any court of law or equity." That is all it says. Case law has brought Auburn University in and shown that we share in the sovereignty of the state. The sole remedy for claimants against Auburn is to go through our State Board of Adjustments. This certainly does not prevent someone from trying to sue the institution, however, it would be dismissed by any court in Alabama and hopefully by most courts in other states because of sovereign immunity. We have a contract with the following clause to which we have objected: "This Contract shall be governed by and construed in accordance with the laws of the State of ---------------(not ALABAMA). The Contractor agrees that it will be subject to the exclusive jurisdiction of the courts of the State of ------------- and the courts of the United States which are located within the State of ---------- in actions that may arise under this Contract. The Contractor acknowledges and agrees that any rights or claims against the State of --------- or its employees hereunder, and any remedies arising therefrom, shall be subject to and limited to those rights and remedies, if any, available under (state name) Code Annotated, Sections 9-8-101 through 9-8-407." (basically their version of the state board of adjustments) We objected initially to many clauses and they changed all but this one. We objected finally to this one and received the following response: "The paragraph to which you refer is not a negotiable item according to the legal staff downtown. They feel that they have made concessions along the way to make this contract work, but this is standard language in all state contracts now and they have negotiated all they can. If Auburn cannot do the overlooking in this case, I'm afraid we will not be able to work with the university. We have contacted XYZ University and they can and will do the work. We also have a contract with Auburn for the AAA Project. When this comes up for renewal, I fear we will find ourselves deadlocked again even though it is at least a 20+ year association. [editorial comment - the previous 20 years contracts didn't have this clause in them] I think it is very unfortunate that state and university personnel are past ready to get on with this, but we are being hamstrung by contract verbiage that we both know has no meaning in the real world." Our General Counsel is just as adamant for changing the language to Alabama as their is in keeping it as their own state. We offered to take it out all together and remain silent. That way, it would be an issue only if something really bad happened. After all, this has "no meaning in the real world." as far as they are concerned. What I would like to say to them in response is not polite and thus not effective. SO I appeal to this group to help me figure out what I am overlooking and what universities out there would agree to their language. If you could accept this language, please tell me if it is something in your charter or constitution or policies or what that makes this acceptable. Do you have gobs of insurance and a huge general counsel staff? I am honestly wanting to learn the risks involved. Thank you. ----------------------------------------------------------------- Martha M. Taylor, Director Office of Sponsored Programs 310 Samford Hall Auburn University, AL 36849-5131 334-844-4438 334-844-5953 (fax) (xxxxxx@auburn.edu) ====================================================================== Instructions on how to use the RESADM-L Mailing List, including subscription information and a web-searchable archive, are available via our web site at http://www.hrinet.org (click on "Listserv Lists") ====================================================================== ====================================================================== Instructions on how to use the RESADM-L Mailing List, including subscription information and a web-searchable archive, are available via our web site at http://www.hrinet.org (click on "Listserv Lists") ======================================================================
