Q. I am thinking of suing my publisher. It’s located in Florida, and the contract says that it’s governed by Florida law. I live in New York. Do I have to sue the publisher in Florida or can I sue it in New York? Do I need a Florida lawyer to sue it in Florida?
A. Just because the contract says it is governed by Florida law does not mean you have to sue in Florida. The “governing law” provision (also called “choice of law”) only dictates which state’s laws must be used in interpreting the contract, not where the suit must be brought. If the proper procedures are followed, the case can be brought in New York (or another state where the publisher does business) regardless of whether the issue involved is a legal or factual one. To the extent the answer involves Florida law, the New York (or other) court could read the Florida statutes and cases and use Florida law to decide the case.
On the other hand, if the contract says that all lawsuits between you and the publisher must take place in Florida or has a sentence similar to “the jurisdiction of the courts in Florida is exclusive,” then you will have to bring your lawsuit there. Clauses like these are known as an “exclusive jurisdiction” or “choice of venue” clause. Not all publishing contracts have them.
If the suit must be brought in Florida and you know a good Florida litigator who is knowledgeable about book publishing and is within your price range, seriously consider hiring him or her. But the person you hire need not be a member of the Florida bar; you might find it more convenient to deal with a knowledgeable, experienced lawyer near where you live. In areas like contract law, the laws of various states rarely differ significantly in key respects. And many experienced litigators in New York know lawyers in Florida (and other states) who, for relatively small amounts, will nominally act as co-counsel on your lawsuit to assure compliance with the procedural requirements in the relevant state (primarily reviewing the papers to make sure they comply with technical procedural requirements of law and allowing the Florida counsel’s name to appear on the legal papers as “local counsel”). If you and your lawyer decide to file the lawsuit in a federal court located in Florida instead of a Florida state court, then those steps should not be necessary.
In negotiating a contract where author and publisher are in distant states and the publisher’s form provides that the jurisdiction of its home state is exclusive, authors should try to change “exclusive to “non-exclusive.” If the publisher won’t accept that, seek to provide — on the “what’s good for the goose is good for the gander” theory — that litigation in either of your home states will be permitted. In offering the latter, authors can point out that they are still giving up a lot because, without the contractual limitation, they would be entitled to sue the publisher in any state where it does business.
(Originally published in the Winter 2009 issue of the Authors Guild Bulletin. © Mark L. Levine)
Answers to questions on this site are general in nature only. You should consult a lawyer for information about a particular situation. For more information about book publishing contracts and issues, see Levine’s book.