Commercial Insights
Analysis and practical guides on commercial.
86 articles, checklists, and guides on commercial law, written by the attorneys at MC Law. Every piece is general information, not legal advice—for a specific matter, contact the firm.
The Robinson-Patman Act: Price Discrimination, Promotional Allowances, and a Statute That Came Back
The Robinson-Patman Act prohibits charging different prices to competing buyers of the same goods, and for decades it was treated as a statute nobody enforced. That assumption has become unsafe. This article explains what the Act actually requires: two contemporaneous sales, commodities of like grade and quality, a price difference, and a reasonable possibility of competitive injury—plus the defenses that resolve most real cases. It works through the Morton Salt inference and what Volvo did to it, the cost justification defense that almost nobody successfully invokes, the meeting competition defense that most sellers actually rely on, and the functional discount analysis from Texaco v. Hasbrouck. It then covers promotional allowances and services, where the proportionally equal terms requirement operates as strict liability, and buyer-side exposure. It closes with a compliance program that works.
Structuring and Papering an Equipment Lease: A Practical Guide
An equipment lease is documented as a master agreement with schedules, and the schedules are where the lease actually lives. This guide runs the structuring and documentation process from both sides: choosing a structure that achieves the characterization the parties need, sizing the residual, and drafting the schedule terms that determine whether the transaction is a lease or a loan. It covers the finance lease designation and the acceptance mechanics that make hell or high water operative, the insurance and casualty provisions, the stipulated loss schedule, and the perfection steps including the precautionary filing every lessor makes. It then turns to the lessee's negotiation, where the value is concentrated in the acceptance conditions and the end-of-term provisions rather than in the rate.
Robinson-Patman Compliance Checklist
Robinson-Patman compliance is an evidentiary discipline, and this checklist collects the steps that produce the evidence. It opens with the screen that determines whether meaningful exposure exists at all, then covers the net price mapping and competing-customer analysis that locate it. Separate sections address each justification—cost, meeting competition, functional discount, and availability—with the requirements that make each hold. It then runs the promotional allowance program, which approaches strict liability and carries an affirmative notification duty, the brokerage provision, and buyer-side exposure. It closes with the sales training points, the ongoing exception reporting, and the red flags that should stop a pricing decision.
Price Discrimination Toolkit: Pricing Audits, Cost Justification Files, and Meeting Competition Records
This toolkit provides the working documents of a Robinson-Patman compliance program, each annotated with the failure it prevents. It supplies a net price worksheet and a competing customer matrix for locating exposure, a meeting competition form designed to be completed in four minutes by someone in a customer's parking lot, and a cost justification study outline built to survive scrutiny. It provides a functional discount agreement with the two-level customer problem solved, a promotional allowance plan with alternatives and the affirmative notification letter that Fred Meyer requires, and an exception approval form. Sales and procurement training scripts, a brokerage review template, and a privileged assessment memorandum structure complete the set.
Negotiating a Contract Manufacturing Agreement: A Practical Guide
This guide walks through negotiating and running a contract manufacturing relationship in the order the work happens, from selecting the manufacturer to leaving it. It starts with the diligence that determines everything downstream, then the term sheet that settles the five provisions worth real negotiating capital, and the contract architecture that keeps purchase orders from overwriting the agreement. The middle of the guide covers tooling, capacity and forecasting, the quality agreement written alongside the commercial one, change control, and the pricing mechanism with the audit that keeps it honest. Later steps address supply chain compliance obligations that fall on the customer, monitoring the manufacturer's financial health, running the relationship through scorecards and audits, handling deterioration, and executing a transfer. A running example follows one hardware company through a negotiation and, three years later, a transition.
International Sales of Goods: The CISG, Incoterms, and the Contract You Did Not Know You Signed
The Convention on Contracts for the International Sale of Goods applies automatically to most cross-border sales between businesses in signatory countries, and it displaces the Uniform Commercial Code unless the parties opt out. Many contracts governed by it were drafted by lawyers who did not know it applied. This article explains when the CISG governs, how it differs from Article 2 in ways that change outcomes—no parol evidence rule, no writing requirement, a different mirror image rule, a different standard for termination, and a different damages measure—and how to opt out properly if that is the goal. It then covers Incoterms, the delivery term abbreviations that allocate cost, risk, and customs responsibility, and the recurring errors in using them. Worked examples follow a battle of the forms and a dispute over a rejected shipment.
International Sale of Goods Contract Checklist
Cross-border sale contracts fail on a small number of recurring points, and almost all of them are checkable. This checklist runs the whole document. It opens with the CISG applicability determination and the opt-out language that actually works, then covers Incoterm selection driven by the logistics rather than by habit, the transport document and payment mechanism, and the insurance that must follow risk rather than freight. Later sections cover specification, inspection, and the notice of non-conformity that defeats more claims than any substantive rule, then the compliance layer of export controls, sanctions, customs, and product regulation. It closes with a reconciliation table for the contract, the credit, the Incoterm, and the insurance, and a set of red flags.
Hardware Supply Toolkit: Manufacturing Agreements, Quality Terms, and Transition Plans
This toolkit provides the working documents of a hardware supply relationship, ordered by when they are used. It opens with a supplier diligence questionnaire built around the questions that actually predict trouble, a term sheet identifying the five provisions worth real negotiating capital, and contract architecture language that stops purchase orders from overwriting the agreement. It supplies a tooling schedule and the unconditional release clause that makes ownership meaningful, forecast zone and allocation terms, a quality agreement outline, a change control form naming plant relocation, and an epidemic failure clause carved out of the liability cap. Later tools cover a supply chain compliance rider, a supplier scorecard, an adequate assurance letter, a termination and transition notice, and a transition project plan. Each item is annotated with the failure it prevents.
Equipment Leasing Toolkit: Lease Schedules, Hell or High Water Clauses, and Remedy Provisions
This toolkit supplies the operative documents of an equipment lease in drafting-ready form, annotated with the characterization or enforcement consequence each provision carries. It provides a lease schedule with the terms that determine whether the transaction is a lease or a loan, a finance lease designation with the disclosure limb satisfied, a warranty disclaimer, and a hell or high water clause with the limits identified. It supplies an acceptance certificate with the lessee-side conditions worth negotiating, a stipulated loss value schedule that credits disposition proceeds, precautionary filing language with the backup security grant, and end-of-term provisions including a fair market value appraisal mechanism. Remedies, a landlord waiver, and a lessee estoppel certificate complete the set.
Equipment Leasing and UCC Article 2A: True Leases, Disguised Security Interests, and Hell or High Water
An equipment lease is either a lease or a secured loan wearing a lease's clothing, and almost everything that matters follows from which one it is. This article explains the statutory test that decides it, why the bright-line rule catches more transactions than lessors expect, and what the economic realities analysis adds when the bright-line test is not met. It then covers Article 2A's distinctive features: the finance lease, which turns a lessor into a funding source with no warranty exposure, and the hell or high water clause that makes rent obligations absolute. It works through the lessor's remedies, the perfection and precautionary filing practice that protects against recharacterization, and the treatment of leases in bankruptcy, where the distinction between a true lease and a security interest determines everything. Worked examples follow two nearly identical transactions to opposite outcomes.
Equipment Lease Characterization Checklist
Whether an equipment lease is a lease or a secured loan is decided by a statutory test that ignores the parties' labels, and almost everything else follows from the answer. This checklist runs the characterization analysis in the order the Code requires, then covers the structuring decisions that produce the intended result—term against economic life, option pricing, and the residual assumption with genuine risk. It then runs the documentation: the finance lease disclosure requirement, the acceptance mechanics, the insurance and casualty provisions, and the perfection steps including the precautionary filing and lien search every lessor should complete. Separate sections cover the lessee's negotiation priorities, the end-of-term deadlines that cause most losses, and enforcement on default.
Cross-Border Sales Toolkit: CISG Opt-Outs, Incoterms Selection, and Shipping Documents
This toolkit provides the operative clauses of a cross-border sale of goods contract in drafting-ready form, annotated with the failure each one prevents. It opens with governing law and CISG treatment, including the exclusion formula that works and the supplements needed if the Convention is retained. It supplies an Incoterms selection matrix and a delivery clause, an insurance clause calibrated to the delivery term, and a documentary credit reconciliation worksheet. For performance and disputes it provides an inspection and notice regime, a Nachfrist notice, a rejection notice, and a compliance clause covering export controls and sanctions. Force majeure, dispute resolution, and an order of precedence clause for framework arrangements complete the set.