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.
Running a Legal Sweepstakes or Contest: A Practical Guide
This guide takes a promotion from concept to closeout. It works through the design decisions that determine the compliance profile, how to build an alternative method of entry that actually works, how to draft official rules and the abbreviated rules that appear in advertising, when registration and bonding are required and how to avoid them, the launch review that catches the errors regulators notice, and the administration that follows: winner selection, verification, affidavits, prize delivery, tax reporting, and records. It includes a timeline, a budget, and the provisions that matter when something goes wrong.
Dark Patterns, Auto-Renewal, and the FTC Click-to-Cancel Rule
Subscription businesses now face a body of law directed not at what they say but at how their interfaces are built, and the central proposition is that a cancellation path must be as easy as the signup path. The federal framework runs through ROSCA and the FTC Act, supplemented by an FTC rule on negative option marketing whose fate has been complicated by litigation, and by a growing set of state automatic renewal statutes that impose their own disclosure and cancellation requirements with private rights of action. This article explains what a negative option program is, what express informed consent and clear and conspicuous disclosure actually require, the specific design practices regulators have treated as unlawful, and the state statutes that now do most of the work. It closes with an audit method for a signup and cancellation flow.
Cannabis Business Law: Licensing, Banking, Intellectual Property, and the Federal Problem
Cannabis is legal in most states and a Schedule I controlled substance under federal law, and every legal question in the industry descends from that contradiction. A cannabis business pays federal income tax on gross profit rather than net income because Section 280E disallows ordinary deductions. It generally cannot obtain a federal trademark registration for the goods it actually sells. It cannot file for bankruptcy. Its contracts may be unenforceable in federal court. This article explains how the industry operates within those constraints: the licensing regimes and ownership disclosure rules that determine who may participate, why banking access remains limited and what the FinCEN framework requires, how to build a defensible intellectual property position without federal registration, and what rescheduling would and would not change.
Buying, Leasing, and Operating a Farm: A Practical Legal Guide
This guide covers the transactions and the annual operating cycle of a farm. It starts with buying farmland and the diligence items that are specific to agriculture: water rights and their priority, mineral severance, drainage and tile, wetland determinations, conservation compliance history, and program payment base. It then works farm lease drafting from both sides, the operating credit relationship and the liens that attach to everything, crop insurance and program elections with their deadlines, the trust preservation practices that determine whether a producer gets paid, labor and food safety compliance, and the succession plan that most farms do not have.
Product Safety and Recall Toolkit
Product safety is a system that either produces the records a recall requires or does not, and the difference is decided years before an event. A company that cannot identify which units are affected and where they went must recall everything, and the gap between forty thousand units and nine hundred thousand is the entire economics. This toolkit covers the whole arc: designing and certifying to the applicable standards, building the complaint intelligence that surfaces a pattern rather than resolving incidents one at a time, the traceability infrastructure that determines recall scope, recognizing a reportable condition and meeting reporting deadlines measured in hours, executing a recall including notification and logistics and effectiveness checks, the parallel product liability and criminal exposure, and the contracts and insurance that allocate the cost. It closes with a worked sequence showing how traceability narrowed one recall from 340,000 units to 62,000, and with the mock recall exercise that reveals whether the system can answer the scope question at all.
Consumer Financial Protection Statutes: The FCRA, the FDCPA, the ECOA, and TILA in Practice
A business does not have to be a bank to be subject to consumer financial protection law. Pulling a credit report on an applicant, collecting a past-due invoice, offering payment plans, or extending trade credit each triggers a federal statute with statutory damages, fee-shifting, and a plaintiffs bar built around it. This article covers the four regimes that reach ordinary businesses most often. It explains the FCRA's permissible purpose and adverse action requirements, its separate rules for employment background checks, and the obligations of furnishers who report to credit bureaus. It then covers the FDCPA, including who counts as a debt collector, the validation notice, and Regulation F's communication rules, followed by the ECOA and Regulation B on credit discrimination and adverse action, and TILA and Regulation Z on disclosure and rescission. Later sections address UDAAP, state analogues, damages, and program design.
Food and Beverage Regulation: FDA Labeling, the FSMA, and State Cottage Food Laws
Food and beverage businesses are regulated by more agencies than almost any other consumer industry, and the boundaries between them are historical rather than logical. This article maps the framework: what makes a food adulterated or misbranded under the Food, Drug, and Cosmetic Act, how the label is actually constructed panel by panel, what the Food Safety Modernization Act requires of manufacturers and importers, when a claim converts a food into an unapproved drug, and how the USDA, TTB, state agriculture departments, and cottage food statutes divide up what the FDA does not cover. It also addresses the two exposures that end companies rather than merely costing them money: a recall handled badly, and the strict criminal liability that the Park doctrine imposes on responsible corporate officers. The recurring theme is that nearly every failure in this field is cheap to prevent before launch and expensive to remediate afterward.
Export Controls and Economic Sanctions: The EAR, ITAR, and OFAC for Ordinary Businesses
Export control and sanctions law reaches ordinary companies that do not think of themselves as exporters, because the definitions capture software downloads, cloud access, engineering emails, and hiring a foreign national. This article explains the three regimes an American business is most likely to encounter. It covers the Export Administration Regulations and how to classify an item, determine whether a license is required for a destination and end use, and apply a license exception, along with the deemed export rule that turns a domestic hire into an export. It then covers ITAR and the far stricter regime for defense articles and technical data, and OFAC sanctions, including the SDN List, the fifty percent rule that catches unlisted subsidiaries, and the difference between list-based and comprehensive programs. Later sections address antiboycott rules, screening and compliance program design, voluntary self-disclosure, and penalties, with a worked example, a screening checklist, and an FAQ.
Business Insurance and Coverage Disputes: CGL, E&O, Cyber, and D&O
Insurance is the only asset most businesses own that pays out precisely when everything else is going wrong, and it is the asset owners understand least. This article explains the policies a business actually needs, how each responds, and where coverage fights come from. It covers the commercial general liability policy in detail, including the difference between Coverage A for bodily injury and property damage and the much-overlooked Coverage B for personal and advertising injury, which is the provision that funds many intellectual property and defamation defenses. It explains occurrence versus claims-made triggers, retroactive dates, and why tail coverage matters at the end of a professional relationship. It then covers the duty to defend, which is broader than the duty to indemnify and is determined by the allegations rather than the facts, along with reservations of rights, independent counsel, and allocation between covered and uncovered claims. Sections on technology errors and omissions, cyber, directors and officers, employment practices, and the contractual insurance requirements that appear in every lease and vendor agreement follow, with claim-handling guidance, a worked example, an FAQ, and related reading.
Force Majeure, Impracticability, and Frustration of Purpose
When something happens that makes performance impossible, ruinously expensive, or pointless, three separate doctrines may excuse it, and they operate on completely different premises. A force majeure clause is a contract term interpreted like any other and construed narrowly. Impracticability is a common-law and UCC doctrine that excuses performance made extraordinarily difficult by an event whose non-occurrence was a basic assumption of the contract. Frustration of purpose excuses a party whose performance is still possible but whose reason for contracting has evaporated. This article separates them, explains the elements courts actually apply, works through the pandemic-era decisions that tested each of them, and covers the procedural requirements—notice, mitigation, and allocation—that decide most disputes before the substantive standard is ever reached.
Product Recall Readiness Checklist: A Practical Checklist
The cost of a recall is decided long before it happens, by whether the company can identify which units are affected and where they went. A manufacturer that cannot narrow the scope must recall everything, and the difference between forty thousand units and nine hundred thousand is the entire economics of the event. This checklist builds the readiness that determines that outcome: traceability infrastructure from lot codes on the product through distribution records to purchaser data, a complaint intelligence system that surfaces patterns rather than resolving incidents one at a time, a written plan with named decision-makers and reporting analyses for each applicable regulator, prepared notification and logistics capability, supplier and customer contract provisions that allocate the cost, and the mock recall exercise that reveals whether any of it works. It closes with the mock recall exercise, which is the only way to learn whether the traceability infrastructure can answer the scope question within twenty-four hours.
Defending a Debt Collection Lawsuit: A Practical Guide
Seventy percent of consumer debt collection cases end in default judgment because the defendant never files anything. This guide is written to change that outcome. It explains what the summons actually requires and by when, how to write an answer that preserves every defense, which defenses succeed against debt buyers and why, how to use discovery and requests for admission to reach the documents the plaintiff usually does not have, when to move to compel arbitration and why it works in this setting, how to counterclaim under the FDCPA, how to settle on terms that do not create new problems, and what to do if a default judgment has already been entered.