This post uses hypothetical scenarios for illustrative purposes only. It does not describe any actual client, transaction, or representation, and is not legal advice.
I was on a call last month with a Jacksonville-based founder whose purchase agreement, a year and a half post-closing, had finally generated the indemnification claim everyone had quietly feared at signing. The buyer’s counsel had filed a demand letter alleging a working-capital adjustment overlap with an indemnity-covered tax matter, and the claim was sitting in the dollar range where settlement was possible but not certain. The forum-selection clause pointed to “the state courts located in Duval County, Florida.” The buyer’s lawyers, a New York firm with a Miami partner who had reviewed the agreement at signing, assumed that meant the Florida Business Court — the specialized commercial division that the M&A forum-selection clause they had pulled from their model agreement seemed to point at. The founder’s counsel knew it did not, and that 2026 mismatch between drafting assumption and Florida courthouse geography is the operating problem this post addresses.
Duval County does not have a Business Court Division. Neither does Nassau County. Neither does Volusia, Lee, or Manatee. The complex-business-court infrastructure that out-of-state counsel routinely assumes is statewide in Florida is, in fact, present in only five of Florida’s sixty-seven counties: Orange and Osceola in the Ninth Circuit, Hillsborough in the Thirteenth, Miami-Dade in the Eleventh, and Broward in the Seventeenth. Everything else — including the entire I-95 corridor north of Daytona, including Florida’s capital, including most of the Panhandle, including the I-75 corridor between Tampa and Naples — routes commercial disputes to the same circuit-court civil division that handles every other species of civil case in the county. Slip-and-falls. Probate contests. Routine commercial collections. M&A indemnification disputes.
The drafting implication is real, and it is one the M&A bar — particularly out-of-state counsel papering Florida-nexus deals — has not absorbed at the rate the geography has shifted. What follows is the operating manual.
What the Business Court Division actually is
The Business Court Division is not a separate court. It is a designated set of dockets within the existing circuit court’s civil division, staffed by judges with prior commercial-litigation experience, operating under local administrative orders that supplement the general Florida Rules of Civil Procedure with case-management protocols designed for complex business disputes. The Ninth Circuit’s Business Court, the longest-running, was established by a December 2003 administrative order, began operations in 2004 under Judge Renee A. Roche as the state’s first specialized business-court judge, and has built up a body of practice around commercial cases that includes early case-management conferences, structured discovery scheduling, and a single judge assigned to the case from filing through trial.
The substantive law applied is the same Florida law that any circuit court applies. The procedural law is largely the same Florida Rules of Civil Procedure. What differs is the case-management posture, the judicial familiarity with complex commercial doctrine, and the docket density. A typical Ninth Circuit Business Court judge handles a smaller civil docket with deeper case engagement; a typical non-business-court circuit judge in a county without a Business Court handles a high-volume general civil docket. The practical consequence is that a Florida M&A indemnification claim filed in Hillsborough County’s Business Court Division and the same claim filed in, say, Polk County’s general civil division will follow meaningfully different timelines and will be heard by judges with meaningfully different baseline familiarity with the substantive doctrine in play.
The sets out the threshold criteria for cases that may be assigned to the division — minimum amount in controversy, a list of qualifying case types that includes shareholder disputes, M&A litigation, business torts, and indemnification claims arising from corporate transactions. The Eleventh Circuit’s Complex Business Litigation Section operates on parallel principles. The Thirteenth Circuit’s Complex Business Litigation Division (Division L) was established by administrative order effective January 22, 2007, with Judge Richard A. Nielsen as the first presiding judge, and operates with similar thresholds. Osceola County became the fifth Florida county with a Business Court Division effective January 3, 2023.
What is and is not statewide
The Florida Bar’s Business Law Section has, for several years, advocated for a statewide Business Court through a draft Rule of Judicial Administration. The white paper produced by the Section’s Business Court Task Force lays out the case for the expansion. As of the date of this post, that proposal has not been adopted; the Business Court infrastructure remains a county-by-county institution operating under local administrative orders, not a statewide division operating under a uniform statewide rule.
That fact controls the drafting choice. A Florida-governed purchase agreement that selects “the state courts of Duval County” as the exclusive forum selects, as a practical matter, the general Duval County circuit civil division. A Florida-governed purchase agreement that selects “the state courts of Orange County” selects a forum where the Business Court Division is available for cases that meet the threshold criteria. A Florida-governed purchase agreement that selects “the state courts of Florida” without specifying a county selects venue under the general venue statute, which for a contract dispute will typically anchor in the county where the breach occurred or where the defendant resides — and which may or may not, depending on the geography of the dispute, route the case into a county with a Business Court Division.
The same drafting move that, in a Delaware-governed agreement, lands the case in the Court of Chancery — the single most consequential drafting choice in M&A jurisdiction selection — does not have a clean Florida analogue. The closest Florida equivalent is the affirmative selection of venue in a county with a Business Court Division and language that contemplates assignment to that division if the case qualifies. The selection of “Florida state court” or “the state courts of [non-business-court county]” is the equivalent of selecting Delaware Superior Court — a competent forum, but not the forum the deal bar has come to assume.
What 2026 buyers and sellers are doing
The pattern I see in Florida-nexus M&A deals coming through Fernandina Beach and across the state in 2026 has two flavors.
The first flavor is the out-of-state buyer who lets standard forum-selection language carry through from the firm’s model agreement without modification for Florida geography. The model says something like “the state courts located in the State of Florida.” The Florida target’s headquarters happens to be in a county without a Business Court Division. The agreement closes. Eighteen months later, when the indemnification dispute surfaces, the buyer’s litigation counsel is surprised to learn that the forum is not what the deal team assumed. The deal happens to be small enough that the matter is below the financial threshold for transfer to a different forum, and large enough that the lack of judicial familiarity with M&A doctrine adds friction the buyer had not priced.
The second flavor is the sophisticated in-state seller who affirmatively selects a county with a Business Court Division — typically Orange or Hillsborough — as the exclusive forum, regardless of where the target’s operations are concentrated. The selection is upheld under Florida’s forum-selection clause doctrine, which after Manrique v. Fabbri, 493 So. 2d 437 (Fla. 1986), and as reaffirmed in Espresso Disposition Corp. 1 v. Santana Sales & Marketing Group, Inc., 105 So. 3d 592 (Fla. 3d DCA 2013), enforces mandatory forum-selection clauses in commercial contracts absent a showing of unreasonableness or public-policy violation. The sophisticated seller has, through that drafting choice, captured the procedural advantages of the Business Court Division for any future dispute.
The asymmetry between the two flavors is straightforward. The sophisticated party gets the forum they want. The unsophisticated party gets the forum the model agreement happened to select. In Florida M&A in 2026, that asymmetry is shifting more dispute leverage to the side that paid attention at signing.
The drafting moves
The drafting analysis for Florida-governed M&A in 2026 breaks into four moves.
First, select a county with a Business Court Division as the primary forum. Orange County is the longest-running and best-developed. Hillsborough and Miami-Dade are comparable. The selection should be unambiguous — “the state courts located in Orange County, Florida” — rather than open-ended “the state courts of Florida.” The unambiguous selection forecloses the venue ambiguity that the general statute would otherwise generate.
Second, include language contemplating assignment to the Business Court Division. The case will not automatically land there even in a Business Court county — the parties typically need to request assignment, and the assignment is subject to the division’s case-eligibility criteria. The clean drafting language reads, in substance, that the parties consent to assignment of any dispute arising under the agreement to the Business Court Division of the selected circuit, if eligible, and that the parties will jointly request such assignment if applicable.
Third, address the federal-court alternative. Florida-governed M&A disputes between parties of diverse citizenship will frequently be removable to the U.S. District Court for the Middle, Southern, or Northern District of Florida. The federal courts in Florida do not have a complex-commercial division analogous to the Business Court Division — the case will land on the general civil docket. Sellers who have affirmatively selected the Florida state Business Court forum should consider an express waiver of removal as part of the forum-selection package. Express removal waivers are generally enforced for sophisticated commercial parties, and Atlantic Marine Construction Co. v. U.S. District Court for the Western District of Texas, 571 U.S. 49 (2013), supplies the analytical backdrop for how federal courts treat contractual forum agreements through Section 1404(a) and forum-non-conveniens analysis.
Fourth, build the forum-selection choice into the term sheet rather than the definitive. A term-sheet provision that says “Governing law: Florida. Exclusive forum: state courts of Orange County, Florida, with consent to Business Court Division assignment” is a one-line provision that constrains the buyer’s definitive-agreement drafting in the same way that the comparable Delaware Court of Chancery selection constrains it in a Delaware-governed deal. Without the term-sheet anchor, the definitive’s forum clause becomes a negotiation that the seller is conducting from behind, against a buyer whose model agreement defaults to whatever the firm’s home jurisdiction happens to be. The seller-friendly versus buyer-friendly framing applies cleanly here.
The Florida-Choice Act interaction
One additional 2026 wrinkle deserves a brief note. Florida’s Choice of Law and Forum in Contracts Act, codified at Fla. Stat. 搂搂 685.101–.102, has two operating pieces. Section 685.101 permits parties to a contract involving consideration of at least two hundred fifty thousand dollars to select Florida law even where the contract bears no relation to Florida. Section 685.102 is the companion provision: it allows the parties to that same qualifying contract to submit, in writing, to the jurisdiction of Florida courts, with the written submission being the statutory hook that the long-arm statute would otherwise not supply. Together the two sections are the Florida analogue to the New York statutes that have made New York the default neutral forum for commercial contracts of national reach.
The interaction with the Business Court Division is that the Act enables Florida forum selection for a much wider universe of out-of-state-target M&A deals than the geographic-nexus rule would otherwise allow. A New York buyer acquiring a California target can validly select Florida law and Florida forum under the Act if the deal value crosses the statutory threshold and the agreement is properly drafted — in writing, with the choice-of-law and consent-to-jurisdiction language both present. The selection of a Florida county with a Business Court Division for such a deal captures the procedural advantage of the Business Court for parties with no other Florida connection. That is a use of the Act that, in 2026, sophisticated transactional counsel are beginning to deploy more frequently — particularly in middle-market deals where the parties want neutral commercial-court infrastructure without the cost premium of the Delaware Court of Chancery or the New York Commercial Division.
The takeaway
Forum selection in Florida-governed M&A is, in 2026, a more consequential drafting choice than the out-of-state deal bar typically treats it as. The Business Court Division is not statewide. The Florida circuit court system is uneven in its complex-commercial capacity. The drafting choice that maps onto the Delaware deal bar’s default of the Court of Chancery is the affirmative selection of a Business Court county, with consent-to-assignment language, and ideally with an express removal waiver. The drafting choice that does not map onto that default — the open-ended “Florida state courts” or the unconsidered selection of a non-Business-Court county — produces a forum the parties did not actually choose. The integrated picture sits alongside the broader Florida M&A practice considerations, the indemnification cap architecture that determines how much the forum choice actually matters in dollar terms, and the related corporate governance architecture that controls how disputes are surfaced inside the target before they leave the boardroom.
If you are a Florida founder, a Florida buyer, or out-of-state counsel papering a Florida-nexus M&A deal in 2026 and want a second read on the forum-selection architecture or the Business Court Division mechanics, 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.
