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.
Damage Statistics: Contract Litigation
When a contract is broken, the law's first instinct is not to punish the breaching party but to make the injured party whole—to give them the benefit of the bargain they were promised. This guide explains how courts actually compute contract damages, from the foundational rule of Hadley v. Baxendale through the Uniform Commercial Code's sale-of-goods formulas, liquidated-damages clauses and the penalty bar, the duty to mitigate, the new-business rule for lost profits, and the limited availability of specific performance. It walks through the differences among expectation, reliance, and restitution measures, explains why punitive damages almost never appear in contract cases, and shows how attorney's-fee shifting works. It also looks honestly at "damage statistics"—what aggregate figures can and cannot tell you, why the overwhelming majority of cases settle before any number is entered, and how to read median-award data without being misled. Worked hypotheticals featuring clearly labeled parties illustrate each measure. The article closes with a FAQ and a plain-language disclaimer.
Government Contracting Toolkit
Federal contracting is not commercial contracting with extra paperwork. It is a distinct body of law in which terms are incorporated by regulation whether or not anyone negotiated them, the buyer may change the work and terminate for its own convenience, deadlines are jurisdictional, and the contractor must report itself. This toolkit runs the full arc for a company entering or growing in the market: registration and positioning, the size and affiliation analysis that determines eligibility, proposal preparation and pricing, the accounting and timekeeping systems that must exist before a cost-reimbursement award, performance including changes and claims, protests and their unforgiving clocks, the compliance obligations that create the most exposure, and the suspension and debarment risk that governs everything else. It closes with the internal functions a company must build—the accounting system, the timekeeping discipline, the change control, and the disclosure evaluation process—before any of the rest is sustainable.
Antitrust Compliance for Distribution and Pricing: Resale Price Maintenance, Colgate, and Territory Restrictions
Antitrust exposure in distribution is created by ordinary commercial conversations, and the difference between a lawful policy and a felony can be a single sentence in an email. This article explains where the lines are. It starts with the structural divide between horizontal conduct, which includes the per se offenses that carry criminal penalties, and vertical restraints, which are almost all judged under the rule of reason after Leegin. It then covers resale price maintenance and the minimum advertised price policies that companies use instead, the Colgate doctrine and the narrow protection a genuinely unilateral policy provides, and territorial and customer restrictions. Later sections address exclusive dealing, tying, most favored nation clauses, the Robinson-Patman Act and its recent revival, information exchange and trade association risk, no-poach and wage-fixing enforcement, and what a working compliance program contains, with a worked example, an email discipline guide, and an FAQ.
Importing Goods Into the United States: A Practical Guide
This guide takes a company from its first import through a working compliance program. It covers the setup decisions that determine everything afterward, the classification work that should happen before the first purchase order, how to build a landed cost model that includes the tariffs people forget, the supplier documentation that origin and preference claims depend on, the entry process and the deadlines that follow it, and what to do when something goes wrong. It includes a first shipment sequence, contract clauses that allocate customs risk, and the duty savings analysis most importers never run.
TCPA Text Message Marketing Compliance Checklist: A Practical Checklist
The Telephone Consumer Protection Act pays five hundred dollars per message with no cap, which turns an ordinary marketing campaign into eight-figure exposure and makes the compliance question purely evidentiary: can you produce, for every number on the list, proof of what the person saw and agreed to. This checklist builds that capability. It covers consent capture and the disclosure elements that must appear adjacent to the checkbox, the records and version history that must be retained, suppression across every sending system in the company, revocation handling under the FCC's current standard, curfews measured by the recipient's actual time zone, vendor and lead-source diligence, and the governance that keeps a franchisee or a second platform from creating exposure nobody knew existed. It closes with vendor and lead-source diligence, the source of most litigated exposure and the hardest evidence to reconstruct after a demand arrives.
Handling an Insurance Claim After a Property Loss
A first-party property claim is a contractual process with deadlines, documentation requirements, and a built-in tension between an insured who wants to be made whole and an insurer whose adjuster is measuring the loss. Most underpayments are not the result of bad faith; they are the result of an insured who did not document the loss, did not understand the valuation provisions, and accepted the first number. This guide covers the sequence: the first forty-eight hours and the duty to mitigate, giving notice under every potentially applicable policy, documenting the damage in a form the policy's proof of loss will accept, how adjusters work and when to retain your own, the valuation provisions that determine the payment, the business interruption claim that is usually larger than the property claim and always harder to prove, the appraisal process, and what to do when the claim is denied or underpaid. It closes with subrogation, mortgagee interests, and the claim file an insured should build from the first hour, because nearly every underpayment traces to documentation that was never created.
The Foreign Corrupt Practices Act: Anti-Bribery, Books and Records, and Third-Party Risk
The Foreign Corrupt Practices Act is enforced against companies that never intended to bribe anyone, through third parties they did not supervise, and proven with accounting provisions that require no corrupt intent at all. This article explains how it actually works. It covers the anti-bribery provision element by element, including the contested definitions of foreign official and instrumentality, what counts as anything of value, and the narrow facilitating payment exception and affirmative defenses. It then covers the accounting provisions, which apply only to issuers but account for most enforcement, and which reach conduct with no connection to bribery. A long section addresses third-party intermediaries, where the great majority of exposure originates, with practical diligence and contracting guidance, followed by gifts and hospitality, charitable contributions, hiring, successor liability in acquisitions, the UK Bribery Act comparison, and enforcement policy including voluntary self-disclosure and declinations.
Alcohol Beverage Law: The Three-Tier System, Licensing, and Direct-to-Consumer Shipping
Alcohol is the only consumer product whose regulation is written into the Constitution, and the Twenty-first Amendment's grant of authority to the states produced a body of law unlike any other. A producer answers to a federal agency for permits, labels, formulas, and excise tax, and to fifty state regulators for licensing, distribution, pricing, promotion, and shipping. This article explains the three-tier system and the tied-house rules that enforce it, what the TTB actually requires before a product can be sold, how state franchise statutes make terminating a distributor far harder than the contract suggests, where direct-to-consumer shipping is permitted after Granholm and Tennessee Wine, and how the contract production and private label arrangements common in craft beverage actually need to be structured. It also addresses the transactional side, where licenses generally cannot be transferred as assets and distributor rights survive a change of ownership.
Drafting Contract Language Courts Will Enforce as Written: A Practical Guide
This guide is about writing contract language that means one thing. It covers the structural choices that prevent disputes, the definitions discipline that most drafting failures trace back to, the difference between conditions and covenants and why it decides remedies, the verbs that allocate obligation and discretion, sentence construction that keeps modifiers where you put them, the boilerplate that actually does work including order of precedence and non reliance, and the consistency review that catches the ambiguities introduced in the last two negotiation rounds. It closes with a clause library of formulations that have caused trouble and their fixes.
The Battle of the Forms Under UCC Section 2-207: Purchase Orders, Acknowledgments, and Whose Terms Govern
Two businesses agree on price, quantity, and delivery, exchange preprinted forms whose terms contradict each other, and perform the deal without anyone reading the back pages. Section 2-207 exists to decide what happened, and it produces answers that surprise both parties, because the common-law rules it replaced would have given everything to whoever sent the last form. This article works through the section clause by clause, explains the difference between additional and different terms and why the knockout rule usually decides it, covers the narrow escape hatch for acceptances expressly conditional on assent, and addresses the very different result when contract formation happens through conduct rather than through matching documents. It closes with drafting and process changes that keep a company out of the problem entirely.
UCC Sales and Supply Chain Toolkit
A supply relationship is governed by whichever document won a contest nobody was aware of, by default rules most parties have never read, and by a handful of provisions that decide who bears a loss that has not yet occurred. This toolkit works through the arc of a goods transaction: how the contract forms and whose terms survive, what warranties attach and how each is disclaimed, how remedies are limited and when the limitation fails, when risk of loss passes, what a buyer may reject and when it loses the right, what remedies each side has on breach, and how disruption is excused. It closes with the master agreement structure that avoids the form fight entirely and with the records that decide any dispute. It closes with insolvency and the reclamation, adequate assurance, and administrative priority rights that matter when a counterparty stops paying.
Insurance Program Review Checklist: A Practical Checklist
An insurance program is a portfolio of contracts that most companies renew rather than review, tracking a business that has changed and a set of contractual promises nobody has read against it. The gap between what a company promised its landlord, its customers, and its lenders and what its program actually provides is the most common uninsured exposure in commercial practice, and it is found by reading two stacks of paper against each other once a year. This checklist runs that review: inventory the exposures including the dependency map that sizes business interruption, extract every contractual insurance requirement, then work line by line through the coverages, the valuation and sublimit provisions that determine what a claim pays, the claims-made mechanics, and the broker relationship and renewal calendar. It closes with the broker relationship, the documentation practices, and the renewal calendar that make the review repeatable rather than heroic.