This post uses hypothetical scenarios for illustrative purposes only. It does not describe any actual client, transaction, or representation, and is not legal advice.
Here is the Florida M&A indemnification story founders almost never hear before signing the purchase agreement. A Florida-based buyer closes on a Florida operating company. The five sellers on the other side of the table sit in Illinois, Georgia, New York, and two of them across the Atlantic. The closing wire clears. Nine months later a breach shows up — a customer contract the sellers represented as assignable turns out to have a change-of-control clause the buyer must now cure, or a set of trade payables that were supposed to be off the balance sheet at closing show up in a supplier’s collection letter. The buyer’s indemnification claim is well-drafted, the survival period is still open, and the escrow is still funded. Then the sellers’ litigation counsel files a motion to dismiss for lack of personal jurisdiction under Florida Rule of Civil Procedure 1.140(b)(2), and suddenly the buyer is arguing about International Shoe instead of the accounts payable rollforward.
The question of whether a Florida court can even reach the out-of-state sellers is not something the deal-side purchase agreement lawyer usually thinks about at signing. It is the single most important thing the litigator thinks about the moment the indemnification demand goes unpaid. And the analysis turns on two overlapping regimes — Florida’s long-arm statute in § 48.193 and the federal constitutional minimum-contacts floor — that either work together or fail together depending on how the purchase agreement was drafted twelve months earlier.
What § 48.193 actually reaches
Florida’s long-arm statute has two operative subsections. Section 48.193(1)(a) provides specific jurisdiction over defendants who engage in enumerated Florida-connected acts, including operating, conducting, engaging in, or carrying on a business in Florida; committing a tortious act within the state; contracting to insure a person or property located in Florida at the time of contracting; or breaching a contract by failing to perform acts required to be performed in Florida. Section 48.193(2) provides general jurisdiction over defendants who engage in substantial and not isolated activity within Florida, whether or not the cause of action arises from that activity.
For an out-of-state seller of a Florida target, specific jurisdiction under § 48.193(1)(a) is almost always the theory that carries the weight. The seller executed a stock purchase agreement — or an asset purchase agreement, or a merger agreement — that transferred control of a Florida-domiciled operating company, that required post-closing indemnification, that in almost every well-drafted deal requires payments to be made to the buyer or to an escrow agent in Florida. The seller’s contract, its representations, and its warranties all speak to a Florida entity, Florida employees, Florida customers, and Florida real estate. That is the fact pattern the Florida Supreme Court has consistently held sufficient to satisfy the operating-a-business prong of § 48.193(1)(a).
General jurisdiction under § 48.193(2) is a longer walk. After the U.S. Supreme Court’s 2014 decision in Daimler AG v. Bauman, general jurisdiction over a corporate defendant is essentially limited to its state of incorporation and its principal place of business — and general jurisdiction over an individual is limited to the individual’s domicile. Buyers who rely on general jurisdiction to reach an out-of-state seller are usually reaching for a theory they will not win. The specific-jurisdiction theory under § 48.193(1)(a) is the workhorse.
The constitutional overlay that trips up otherwise clean long-arm claims
Satisfying § 48.193 is only half of the analysis. The Florida Supreme Court’s decision in Venetian Salami Co. v. Parthenais and its successors require the plaintiff to establish both that the statute reaches the defendant and that the exercise of jurisdiction comports with federal due process under International Shoe Co. v. Washington and its progeny.
The due-process floor asks two questions. First, did the defendant purposefully avail itself of the privilege of conducting activities in the forum state, invoking the benefits and protections of its laws? Second, would the exercise of jurisdiction be reasonable — a five-factor inquiry that includes the burden on the defendant, the forum state’s interest, the plaintiff’s interest in efficient relief, judicial efficiency, and the shared interests of the several states.
The 2021 U.S. Supreme Court decision in Ford Motor Co. v. Montana Eighth Judicial District Court tightened the purposeful-availment analysis by requiring that the plaintiff’s claim arise out of or relate to the defendant’s forum contacts. In an M&A indemnification setting, this is almost always satisfied — the very contract that created the forum contact is the contract the buyer is suing on. Contrast this with the Court’s 2017 decision in Bristol-Myers Squibb Co. v. Superior Court of California, where mass-tort plaintiffs who had no connection to the forum could not use the forum to reach a non-forum defendant. Bristol-Myers Squibb is the fact pattern buyers should worry about when the alleged breach relates to a pre-closing tort committed entirely outside Florida by a seller who never set foot in the state — a rare fact pattern in the ordinary indemnification claim, but not an impossible one.
The consent-to-jurisdiction clause that decides everything
A well-drafted purchase agreement makes the whole minimum-contacts analysis academic. Contractual consent to personal jurisdiction is enforceable in Florida — see M/S Bremen v. Zapata Off-Shore Co. at the federal level and its Florida progeny — and a consent clause that specifies a Florida forum, waives objections to venue, and waives forum non conveniens is the belt-and-suspenders answer to the whole § 48.193 question.
The drafting matters. A clause that says only “the parties consent to jurisdiction in Florida” is weaker than a clause that reads, in substance, that each party irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in a specified Florida county, waives any objection to venue in those courts, waives any argument based on forum non conveniens, and consents to service of process by any means permitted by Florida law including service on a named registered agent. The last clause matters more than most deal counsel realize — a defendant who is validly served in Florida is halfway to a Florida judgment before the personal-jurisdiction motion is even briefed.
Buyers who inherit purchase agreements from prior counsel should read the dispute-resolution section the first week after closing. If the clause specifies a non-Florida forum — Delaware Chancery, New York state court, an AAA arbitration seat outside Florida — the buyer’s indemnification remedy is pointed at that forum, and the § 48.193 analysis becomes irrelevant. If the clause is silent, the buyer is stuck arguing minimum contacts. If the clause is broad and Florida-specific, the buyer’s litigator gets to skip the constitutional analysis entirely.
The service-of-process wrinkle nonresident sellers often exploit
Section 48.194 governs service on nonresident defendants and interacts with § 48.193 in ways that matter at the motion-to-dismiss stage. A nonresident seller who is properly served in the seller’s home state under Florida’s long-arm service provisions, or through a Hague Convention channel for foreign sellers, is subject to a Florida court’s power only to the extent the underlying jurisdictional statute reaches. Sellers who dispute jurisdiction file a motion under Rule 1.140(b)(2) accompanied by an affidavit challenging the plaintiff’s factual predicate for long-arm jurisdiction. The plaintiff then has to counter with its own affidavit — the Venetian Salami burden-shifting sequence — and the court either rules on the papers or holds an evidentiary hearing.
A registered-agent-consent clause in the purchase agreement short-circuits this entire sequence. If each seller has designated a Florida registered agent for service of process in connection with disputes under the purchase agreement, service is complete under Florida law when the agent is served, and the minimum-contacts analysis collapses into the contractual consent. Deal counsel who negotiate for this clause save the buyer three months of jurisdictional motion practice on the back end.
Where the specific-jurisdiction analysis actually gets close
Two fact patterns make the § 48.193 analysis meaningfully harder even with a well-drafted contract. First, the passive investor seller. A minority equity holder who never touched the target’s operations and signed remotely may argue that its only Florida contact is the signature itself. Under Burger King Corp. v. Rudzewicz, a contract alone does not establish minimum contacts, but the surrounding negotiations and contemplated future consequences do. A passive seller who received Florida-source distributions and a proportionate share of sale proceeds generally satisfies the standard. A passive seller who inherited equity six months before signing is closer to the line.
Second, the tort-based indemnification claim. A buyer alleging fraudulent misrepresentation against a seller who negotiated from outside Florida faces a harder purposeful-availment analysis than one alleging straight breach of the indemnification covenant. The tort must have caused injury in Florida, and the seller must have known that injury would occur in Florida — generally satisfied when the seller signed reps and warranties on a Florida-target deal, but sellers’ counsel litigate it aggressively.
The purchase-agreement drafting checklist
For deal counsel representing Florida buyers on transactions with out-of-state sellers, the § 48.193 analysis translates into a small set of drafting decisions at signing. First, include an exclusive-jurisdiction clause naming a specified Florida forum — usually the county where the target’s principal place of business sits, and the federal district that covers that county. Second, include an express waiver of any objection based on venue, forum non conveniens, or lack of personal jurisdiction. Third, include a registered-agent-consent clause under which each seller designates a Florida registered agent for service in connection with the agreement. Fourth, include an express acknowledgment of minimum contacts — a recital that the seller has purposefully availed itself of Florida law by executing the agreement, which is not dispositive but is entitled to weight in the reasonableness analysis. Fifth, when the seller is a foreign person, include a Hague Convention service alternative and a covenant not to argue lack of translation.
Deal counsel who work through this checklist at signing convert a potential motion-to-dismiss fight into a straightforward contract-enforcement action. Counsel who leave the dispute-resolution section as boilerplate hand sellers’ litigators a Rule 1.140 opening that can add six to nine months and mid-six-figure fees to the recovery.
For a broader treatment of how these drafting choices interact with the rest of the Florida M&A stack, see the internal treatments at montague.law M&A practice and the seller-friendly-versus-buyer-friendly deal-terms primer at seller-friendly vs. buyer-friendly deal terms. The current statutory text of § 48.193 is available through the Florida Senate’s official statutes portal at flsenate.gov.
The pattern that quietly costs Florida buyers real money on post-closing indemnification is not the reps and warranties. It is the dispute-resolution boilerplate that never got the fifteen minutes it deserved at signing. A well-drafted § 48.193 consent-and-service package converts an out-of-state seller into a defendant a Florida court can reach, and it does so on the first page of the motion-to-dismiss briefing rather than the last.
If you are a Florida buyer working through a post-closing indemnification demand against out-of-state sellers, or a deal lawyer papering the dispute-resolution section on a Florida M&A signing, 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
