Should I agree to a clause that says I can only sue the publisher where it’s located?

Q. I am considering signing a contract directly with an overseas publisher, but it refuses to change the clause that says any lawsuits —whether brought by it or me— must be conducted exclusively in its country. If it sues me, even spuriously, there is no way I could travel there to defend myself. Any suggestions?

A. This is a provision that publishers frequently refuse to budge on, but here are several alternatives you can try.

  1. Provide that any suit by you against it has to be in the publisher’s country but any suit by it against you has to be where you live. This should discourage spurious lawsuits while not preventing a local lawyer (in whichever country) from being hired to pursue valid claims.
  2. Choose a third location that is convenient for both of you or one that is mutually inconvenient. Either would put you and the publisher on equal footing, which is what you are presumably trying to accomplish.
  3. Keep the clause but delete “exclusively.” It gives the publisher a significant part of what it wants but, from your viewpoint, doesn’t make it exclusive so any lawsuit can still take place in your home court (subject to getting jurisdiction over the publisher by properly serving it with a complaint).
  4. Omit the clause altogether, which leaves the dispute for another day (which may never come). The publisher may consider this a satisfactory way to resolve the impasse. Although omitting an important clause is not something I typically recommend, having it would be worse for you since you’re dealing with an overseas situation.

Each of these approaches (or at least the first three) deals with the issue head-on. What may also be helpful — whether or not one of those alternatives is accepted — is what computer-savvy people call a “workaround,” viz., getting to the place you want but by different means. Consider the following:

  • Accede to the publisher’s position but require that before a lawsuit can be brought by either side, both must mediate the dispute or attempt to do so (diligently and in good faith) for a specified period (e.g., 90 days). Mediation is a non-binding procedure in which a skilled third party seeks to work out a compromise acceptable to both sides. Giving both sides the opportunity to air complaints and suggest solutions can help to dampen emotions and overcome the kind of misunderstandings that frequently accompany seemingly irreconcilable disputes. It can be done long distance through 3-way phone calls or by the mediator speaking (or corresponding) separately with each party and then proposing solutions s/he thinks might be satisfactory to both. This alone may resolve the problem without your being required to travel abroad and without the publisher retreating from its position on location of litigation.
  • If you do decide to sign the publisher’s clause (with or without the “exclusive” language) and are eventually sued, be aware that in some jurisdictions contractual provisions requiring suits to be brought in a foreign court may not be enforced unless the clause also says that you 1) accept or consent to that court’s jurisdiction, and 2) waive rights relating to an “inconvenient forum” (often expressed as forum non conveniens). Because of this, if language indicating either of those things is in the contract you are asked to sign, delete them since it is possible the publisher will be satisfied with the clause without either.

By the way, you say that the publisher refuses to change its position. Is that truly so? Have you walked away from the deal and the publisher not called you back? In real hardball negotiating, only if you are truly willing to walk away do you have a chance of succeeding when there’s an impasse on a key issue and all attempts at compromise have failed. The downside of that, of course, is that you have to be prepared to abandon the deal.

Whether this particular clause should be that issue is a separate question. Many people would not consider it one to kill a deal for. However, if your publisher refuses to accept any of the above alternatives or the workaround option, you may want to consider how reasonable your publisher is in general. And if the answer is “not very”—which would be a valid conclusion since the alternatives are reasonable and certainly the workaround causes no harm other than to delay hauling you into court —then you may not want that company or person to be your publisher in any event.

(Originally published in the Winter 2010 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.

Can I sue my publisher in the state I live in or must I sue it where it’s located?

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.