Commercial Insights

Analysis and practical guides on commercial.

85 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.

CommercialAdvertising and Marketing

The TCPA and Text Message Marketing: Consent, Revocation, and Class Action Exposure

The Telephone Consumer Protection Act is thirty-five years old, was written about fax machines and robocalls, and is now the most expensive statute in American marketing because it pays five hundred dollars per message with no cap. A company that sends a single unwanted campaign to fifty thousand numbers has created twenty-five million dollars of nominal exposure before anyone asks whether the messages were annoying. This article explains what the statute actually prohibits after the Supreme Court narrowed the definition of an autodialer in Facebook v. Duguid, why prerecorded voice calls and the do-not-call rules remain the live exposure, what consent must look like and how it must be documented, how revocation works after the FCC's recent rulemaking, and where the state statutes go further than federal law. It closes with a compliance program that actually prevents claims.

Casey Scott McKayMarch 14, 202626 min read

CommercialAdvertising and Marketing

Sweepstakes and Contest Official Rules Checklist: A Practical Checklist

This checklist covers the drafting and launch of a promotion, item by item. It begins with the design questions that determine the compliance profile, then works the alternative method of entry requirements that keep a sweepstakes from being a lottery, every required section of the official rules, the abbreviated rules that must appear in advertising, registration and bonding thresholds and deadlines, the launch review run against final assets rather than the plan, and the administration and closeout obligations including winner verification, tax reporting, and the winners list filings that are most often forgotten.

Casey Scott McKayMarch 7, 20267 min read

CommercialProduct Regulation

FDA Food Labeling Review Checklist: A Practical Checklist

Food labels are among the most prescriptive documents in commercial regulation, and nearly every requirement is a formatting rule with a numerical answer rather than a judgment call. That makes label defects unusually easy to prevent and unusually expensive to discover after a print run. This checklist walks the label panel by panel: the statement of identity and net quantity on the principal display panel, the ingredient statement and allergen declaration and manufacturer identification on the information panel, the Nutrition Facts panel and the serving size that must derive from the reference amount customarily consumed rather than from marketing preference, and then the claims — nutrient content, health, structure function, natural, organic, and bioengineered disclosure — each of which carries its own definition and its own substantiation requirement. It closes with the state overlays, the review process, and the version control that makes it possible to prove what a label said on any given date.

Casey Scott McKayFebruary 8, 202610 min read

CommercialRestrictive Covenants

Restrictive Covenants in Business Sales, Franchises, and Partnerships

Restrictive covenants outside the employment relationship are governed by different rules, judged by a more forgiving standard, and drafted for entirely different purposes than the employee non-compete that dominates the commentary. A covenant given by a seller of a business protects the goodwill the buyer paid for and is enforced in nearly every state, including states that prohibit employee non-competes outright. A covenant in a franchise agreement protects a system and a territory. A covenant among partners or members protects a firm that each of them owns. This article explains how the sale-of-business, franchise, and equity-holder contexts differ from employment, how antitrust law constrains them, why choice of law is the most consequential drafting decision, and what forfeiture provisions can accomplish where injunctions cannot.

Casey Scott McKayJanuary 18, 202625 min read

CommercialAdvertising and Marketing

Consumer Marketing Compliance Toolkit: TCPA, CAN-SPAM, Auto-Renewal, and Endorsements

Consumer marketing is regulated by five overlapping regimes that share one requirement — a record of what the consumer saw and agreed to — and that punish the same failure in different currencies: statutory damages per message, civil penalties per violation, class actions with a per-subscriber remedy, and an order that dictates product design for twenty years. This toolkit organizes them by channel and by function. It covers substantiation and the claims library, consent capture and suppression for calls and texts, email requirements, subscription enrollment and cancellation symmetry, endorsement disclosure and the fake reviews rule, pricing display, promotions, and the governance and records that make the whole program defensible. It closes with vendor and lead-source diligence, because most of the exposure in this area is created by someone the advertiser never dealt with directly.

Casey Scott McKayJanuary 16, 202614 min read

CommercialGovernment Contracts

Government Contracting Basics: The FAR, Bid Protests, and Compliance Obligations

Selling to the federal government is not selling with extra paperwork. It is a different body of contract law, with terms incorporated by operation of regulation whether or not anyone negotiated them, a unilateral right in the buyer to change and to terminate, mandatory disclosure obligations that run against the contractor's own interest, and a protest system that lets competitors challenge an award before performance begins. This article explains how federal procurement is structured, what the contract types mean for risk, how bid protests actually work at GAO and the Court of Federal Claims and when they are worth filing, the claims and disputes process under the Contract Disputes Act, and the compliance obligations that create the most exposure for new entrants. The recurring lesson is that deadlines here are jurisdictional and documentation is the whole case.

Casey Scott McKayNovember 15, 202525 min read

CommercialInsurance Regulation

Insurance Producer and Agency Regulation

Insurance is regulated almost entirely by the states, and the people who sell it are licensed, appointed, examined, and disciplined by fifty separate departments applying similar but not identical rules. This article covers what an insurance producer and an agency actually have to do: how resident and nonresident licensing works and where reciprocity helps, what an appointment is and why it is separate from a license, the premium trust account rules that generate the most license revocations, the compensation disclosure and anti-rebating rules, the best interest standards now governing annuity and life sales, the surplus lines framework for placing business with nonadmitted carriers, and the professional liability exposure that arises when coverage the client asked for is not there. It also covers the premium trust rules that generate more license revocations than any other category of misconduct, the compensation and anti-rebating restrictions that constrain value-added programs, and the best interest standards now governing annuity and life sales. A final section addresses agency transactions, insurtech distribution, and the multistate license and appointment tracking that becomes unmanageable without a register.

Casey Scott McKayNovember 1, 202525 min read

CommercialGeneral Contract and Boilerplate

Negotiating a Master Services Agreement and Statement of Work

The master services agreement and the statement of work do different jobs, and most disputes arise because one document did the other's work badly. This guide separates them. It explains what belongs in the master agreement, which sets the legal architecture once and is negotiated by lawyers, and what belongs in each statement of work, which defines the actual engagement and is usually written by the people who will perform it. It then works through the provisions that decide outcomes: scope and acceptance, which determine when the customer must pay; the pricing structures and change control that determine what happens when the work grows; service levels and their remedies; intellectual property ownership in a services context, where the default rules surprise customers; and the risk allocation architecture of warranties, indemnities, liability caps, and insurance. Later sections address data and security, personnel and subcontracting, termination and transition, and the order of precedence problem that undoes carefully negotiated terms.

Casey Scott McKayOctober 30, 202525 min read

CommercialInternational Trade

Import Compliance and Customs Entry Checklist: A Practical Checklist

This checklist runs an import program from product selection through post entry review. It front loads the classification and trade remedy analysis that must happen before a purchase order, then works valuation including the assists importers most often omit, origin and marking, partner agency requirements, the setup items, the entry sequence with the deadlines that follow it, and the annual program tasks including drawback and self assessment. Separate sections cover what to do when an error is found and what a detention, penalty notice, or audit requires.

Casey Scott McKayOctober 28, 20258 min read

CommercialContract

Electronic Signatures and Records Under ESIGN and UETA: What Actually Binds

Electronic signatures have been legally valid across the United States for twenty-five years, and yet disputes about them are increasing rather than decreasing. The reason is that validity was never the hard question. The hard questions are attribution — proving that a particular person made the mark — and the handful of transactions that the statutes expressly carve out, where an electronic signature is not merely risky but ineffective. This article covers the architecture of the federal ESIGN Act and the state UETA, the elements that make an electronic signature enforceable, the consumer consent process that most companies implement incorrectly, the excluded categories, and the evidentiary problem of authenticating an electronic record years later. It closes with implementation guidance, including notarization, transferable records, and the practices that make an e-signature record hold up.

Casey Scott McKayOctober 24, 202526 min read

CommercialConsumer Protection

Debt Collection Lawsuit Response Checklist: A Practical Checklist

This checklist turns a collection summons into a worklist. It starts with the answer deadline, because seventy percent of these cases end in default judgment for no other reason than silence. It then works the pre-answer investigation that identifies the limitations and standing defenses, the answer and affirmative defenses that must be pleaded or waived, the discovery aimed at the documents debt buyers usually lack, the arbitration motion that often ends the case, the settlement terms to insist on, and the post-judgment exemption claims that determine what a creditor can actually take. Separate sections cover vacating a default judgment and knowing when bankruptcy is the better answer.

Casey Scott McKayOctober 14, 20258 min read

CommercialAgriculture

Farm Lease and Agricultural Operation Compliance Checklist: A Practical Checklist

This checklist covers the recurring compliance obligations of a farm operation and the diligence required to buy or lease farmland. It front loads the two absolute deadlines that end operations, the farm lease termination notice and the crop insurance notice of loss, then works farmland purchase diligence including water rights and conservation compliance, farm lease terms from both sides, the credit and lien picture, crop insurance and program elections, the trust preservation practices that determine whether a producer gets paid, pesticide and organic and food safety records, labor and agritourism items, and the annual succession review.

Casey Scott McKayOctober 2, 20258 min read