USA – FLORIDA Trends and Developments Contributed by: Stuart Singer and Carl Goldfarb, Boies Schiller Flexner
choice-of-law provisions, but doing so successfully will be difficult given the deference provided to such contractual provisions (especially venue clauses). Where the forum selection clause is the fruit of an arm’s length negotiation, the party challenging the clause bears an especially “heavy burden of proof” to avoid its bargain (see Bremen v Zapata Off-Shore Co , 407 US 1, 17 (1972)). Only “some compelling and countervailing reason” will excuse enforcement (Id at 12; see Carnival Cruise Lines, Inc v Shute , 499 US 585, 593–94 (1991)). A contractual choice-of-forum clause is enforceable unless “enforcement would contravene a strong public policy of the forum in which suit is brought, whether declared by statute or by judicial decision”. See Bremen , 407 US at 15; Atlantic Marine Construction Co, Inc v US District Court for Western District of Texas (2013) 571 US 49, 63 (2013) – “a valid forum-selection clause [should be] given controlling weight in all but the most exceptional cases”. A court sitting in Florida will look to Florida’s public policy in deciding whether a forum selection provi - sion violates public policy. See Mazzoni Farms, Inc v EI Dupont de Nemours & Co , 761 So 2d 306, 311–12 (Fla. 2000). As Florida policy favours enforcement of venue provisions and non-compete agreements, Florida courts will likely not override a forum selection clause unless that clause was obtained through fraud, or in some other exceptional circumstance. See Man- rique v Fabbri , 493 So 2d 437, 440 (Fla. 1986); Holder v Burger King Corp , 576 So 2d 973, 974 (Fla. 2d DCA 1991). Courts also give deference to contractual choice-of- law clauses. In federal court, choice-of-law issues in diversity actions – which are how most non-competes reach federal court – depend on the rules of the forum state. Under Florida law, contractual choice-of-law provisions are presumptively enforceable unless the law of the chosen forum contravenes strong public policy. See Interface Kanner, LLC v JPMorgan Chase Bank, NA , 704 F 3d 927, 932 (11th Cir 2013); Mazzoni Farms, Inc , 761 So 2d at 312 – “[a]lthough courts have adopted varied formulations, the underlying principle remains the same: the countervailing public policy must be sufficiently important that it outweighs the policy protecting freedom of contract”.
In the absence of unusual facts, a Florida court is not likely to find that application of a Florida law to a non- compete agreement involving a company based in Florida violates the policy of Florida. See Fla. Section 671.105 (1) (2025); see also Comment f to Section 187 of Restatement (Second) of Conflict of Laws (the law of the state selected in the contract has a substantial relationship to the parties or the contract where the selected state is the principal place of business for one of the parties). An out-of-state worker who is a defendant in a breach of a non-compete action can also raise a personal jurisdiction challenge, but, if the worker voluntarily agreed to a provision establishing venue in Florida, that will likely dispose of any personal jurisdiction challenge. See Office Depot, Inc v Pelletier , 2016 WL 10932510, at *4 No 1 (SD Fla., 8 Sept 2016); Alexander Proudfoot Co World Headquarters LP v Thayer , 877 F 2d 912, 921 No 20 (11th Cir 1989). Workers have raised another argument in some analo - gous cases seeking to limit the scope of injunctive relief, contending that the forum court should not apply its own law to an out-of-state worker on comity and federalism grounds where the law of the forum state conflicts with the law of the state where the injunction would operate. The 11th Circuit’s decision in Keener v Convergys Corp , 342 F 3d 1264 (11th Cir 2003) is instructive. There, the district court, apply - ing Georgia law, enjoined enforcement of a restrictive covenant nationwide (Id at 1266). The 11th Circuit affirmed application of Georgia law, notwithstanding a choice-of-law provision calling for the application of Ohio law: “[b]ecause Georgia public policy is offended by the [non-compete agreement]. Georgia law applies to render the [restrictive cov - enant] unenforceable” (Id at 1271). Though it affirmed application of Georgia law, the court held “that the district court abused its discretion because it did not tailor the injunction to include Geor - gia only” (Id at 1269). It explained that, while “Georgia of course is entitled to enforce its public policy inter - ests within its boundaries”, it “cannot in effect apply its public policy decisions nationwide – the public policy of Georgia is not that everywhere” (Id).
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