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")
======================================================================