This post uses hypothetical scenarios for illustrative purposes only. It does not describe any actual client, transaction, or representation, and is not legal advice.
The 2026 Florida M&A choice-of-law story plays out the same way in almost every dispute I have watched go the distance. A Delaware fund acquires a Florida-headquartered target. The purchase agreement — drafted by the buyer’s Delaware counsel — picks Delaware law and Delaware courts across the board. The founder rolls, signs a two-year noncompete in the purchase agreement, moves on. Two years later, the founder starts an adjacent Florida business inside the geographic zone the noncompete covers. The buyer sues in the Delaware Court of Chancery. The founder removes to Florida state court under an inconvenient-forum argument, or files a parallel Florida declaratory judgment action. And the Florida court refuses to apply the Delaware law the purchase agreement selected — not because the Delaware law is invalid, but because a Florida court will not enforce a foreign choice-of-law provision where the chosen law is materially less protective of Florida public policy than the Florida statute the parties tried to write around.
This is the choice-of-law public-policy override. It is the single most under-appreciated doctrinal issue in Florida M&A drafting, and it lives at the intersection of the purchase agreement, the noncompete, and the seller’s post-closing life. Founders selling Florida businesses and taking Delaware-law purchase agreements at face value are absorbing a governance risk they have not been told about. And in most of the disputes I see actually litigated, the override determines the outcome before the merits are ever reached.
The Restatement § 187 framework Florida adopted in Mazzoni Farms
Florida’s baseline choice-of-law rule for contractual disputes traces to the Florida Supreme Court’s decision in Mazzoni Farms, Inc. v. E.I. DuPont de Nemours & Co., 761 So. 2d 306 (Fla. 2000). Mazzoni Farms adopted the Restatement (Second) of Conflict of Laws § 187 as the analytical framework for evaluating a contractual choice-of-law clause. Under § 187(2), the parties’ chosen law governs unless one of two exceptions applies.
First, the chosen state has no substantial relationship to the parties or the transaction and there is no other reasonable basis for the parties’ choice. This exception rarely applies in Delaware-law selections in Florida M&A because Delaware’s status as the standard entity jurisdiction supplies the reasonable basis. Second — and this is the doctrinal engine of the public-policy override — application of the chosen law would be contrary to a fundamental policy of a state that has a materially greater interest than the chosen state in the determination of the particular issue, and that state’s law would otherwise govern under the default choice-of-law analysis.
The second exception is the trap. Where Florida has a materially greater interest than Delaware in the specific issue in dispute — for example, a noncompete’s enforceability against a Florida resident affecting Florida employment — and applying Delaware law would violate a fundamental Florida public policy expressed in a Florida statute, the Florida court will refuse to apply the chosen Delaware law even though the contract clearly selected it. The Restatement calls this the “public-policy exception.” Florida courts have applied it repeatedly, and the fact pattern in almost every reported case is a noncompete.
Section 542.335 as the fundamental Florida policy anchor
The Florida noncompete statute, § 542.335, sits at the center of the override analysis in M&A disputes because the statute is expressly framed as a codification of Florida public policy. The statute enumerates protectable legitimate business interests, sets presumptions on reasonableness of duration, and — critically for the choice-of-law analysis — includes an explicit legislative declaration that the statute is designed to protect the state’s interest in the enforceability of reasonable restraints. Florida courts read that legislative declaration as a fundamental-policy anchor for the Restatement § 187 analysis.
The line of cases starts with Bradley v. Health Coalition, Inc., 687 So. 2d 329 (Fla. 3d DCA 1997), where the district court refused to apply a chosen New York law that was less protective of the employer’s noncompete than the Florida statute would have been. The line continues through subsequent district court and federal court decisions applying the same reasoning across various chosen jurisdictions — Delaware, New York, Illinois, California, and Massachusetts among them. The pattern is consistent: where the chosen state’s noncompete law is materially less protective of the party invoking § 542.335 than the Florida statute would be, and where Florida has the materially greater interest in the parties and the restraint, the chosen law falls out.
The interesting wrinkle in the M&A context is that § 542.335 is generally more protective of the party seeking enforcement — usually the buyer — than the corresponding law in states like California (which broadly voids noncompetes) or Massachusetts (which imposes garden-leave requirements). This means the override often runs in favor of the buyer against a founder who thinks the chosen state’s more employee-friendly law will protect the founder. The override does not care which side benefits. It applies when Florida has the fundamental policy interest, regardless of which side is asking.
The other Florida statutes with fundamental-policy status
Section 542.335 is the most-litigated anchor but it is not the only Florida statute that carries fundamental-policy weight for choice-of-law purposes. Three others matter for M&A drafting.
First, the Florida Deceptive and Unfair Trade Practices Act, § 501.201 et seq. FDUTPA has been treated as a fundamental Florida policy in a series of decisions applying the override to consumer-protection carve-outs. In an M&A dispute where the seller has made specific factual representations about the target’s compliance posture — and those representations later prove misleading in a way that touches Florida consumers — a Florida court may apply FDUTPA regardless of a chosen non-Florida law, even against a Delaware buyer with a Delaware-law purchase agreement.
Second, Florida wage claims under Chapter 448. Post-closing employment disputes involving withheld earnout consideration, retention bonuses, or deferred compensation tied to a founder’s continued employment can be characterized as wage claims when the plaintiff’s counsel is thoughtful. Florida wage law has been treated as a fundamental policy in the same way § 542.335 has. Purchase agreements that route founder-employment consideration through the deal documents rather than through a separate employment agreement risk pulling the wage-law override into the choice-of-law analysis.
Third, § 685.101 — Florida’s own choice-of-law statute for large commercial transactions — which authorizes parties to select Florida law even for out-of-state contracts if the transaction exceeds $250,000 and involves an obligation to the state. The statute is worth flagging because it is often used defensively by Florida sellers who want to lock in Florida law across the entire deal to avoid choice-of-law litigation later. The statutory text is available through the Florida Senate’s official portal at § 685.101, Fla. Stat.
What this means for purchase agreement drafting
The drafting fix runs in one of two directions and the choice matters at the term sheet.
First direction: bifurcated governing-law clauses. The purchase agreement governs the corporate transaction under Delaware law, and a separately identified schedule or side agreement governs the restrictive covenants under Florida law. This is the cleanest approach and the one I recommend most often for deals where the buyer wants Delaware law across the corporate mechanics and the parties both understand that any noncompete dispute will end up in a Florida court applying § 542.335 regardless. Bifurcation eliminates the override risk because the parties have already stipulated that Florida law governs the covenant piece. It also produces cleaner litigation posture because there is no threshold choice-of-law fight before the merits are reached.
Second direction: full-deal Florida law. The parties accept Florida law across the purchase agreement, the restrictive covenants, the indemnification, and the ancillary documents. This approach is more common than Delaware buyers realize. Delaware fund sponsors often push back initially and then accept Florida law once they understand that the override risk is real and that the Florida commercial code and Chapter 607 provide adequate governance protections for a mid-market deal. Full-deal Florida law is particularly attractive when the target is a Florida operating company with Florida-based revenue and Florida-based employees, because the connection factors under the default Restatement analysis point strongly to Florida anyway. For a broader treatment of how these deal-terms tradeoffs affect seller and buyer positioning, see the internal primer at seller-friendly vs. buyer-friendly deal terms, and the M&A framework at montague.law/business-law/m-a-mergers-and-acquisitions.
The one direction I do not recommend is the middle: a purchase agreement that picks Delaware law across the board with an integrated noncompete inside the purchase agreement itself. That structure invites the override at every post-closing dispute and produces litigation about which law applies before any merits are reached. It is the most expensive path and the least predictable.
The forum selection layer
Choice-of-law and choice-of-forum are separate questions and the override analysis differs for each. A Florida court will sometimes enforce a Delaware-forum clause under § 685.101 principles even while refusing to apply Delaware law to a discrete issue — meaning the litigation ends up in Delaware but applies Florida substantive law to specified claims. Alternatively, a Florida forum with a bifurcated governing-law provision produces the cleanest litigation posture: Florida court applying Florida law to covenants and Delaware law to corporate mechanics under the parties’ express selection.
The forum piece matters because a Delaware chancellor confronted with a Florida § 542.335 issue on a Florida noncompete against a Florida resident will conduct the same Restatement § 187 analysis and reach the same conclusion the Florida court would — but only after the parties have paid to litigate the threshold issue twice. Sellers who accept a Delaware forum in a Florida-target deal are often accepting the Delaware forum with the mistaken belief that Delaware law will govern everything. It will not.
The pattern that costs Florida M&A parties real money in post-closing disputes is not the choice-of-law decision itself. It is the mismatch between what the deal document says and what a Florida court will actually enforce. Founders who take the standard buyer-drafted Delaware-law package at face value are absorbing a doctrinal risk they have not priced. Buyers who assume their Delaware-law drafting will hold up when the noncompete is challenged in Florida are absorbing a different one. The drafting fix is short, it is cheap at term sheet, and it is expensive after closing.
If you are structuring a Florida-target M&A deal and want to walk through the governing-law and forum architecture, feel free to reach out to my firm manager, Magda, at Magda@montague.law, or fill out our contact form. Mention you read this post.
— John
