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.
Drafting and Negotiating a Joint Venture Agreement
A joint venture is two companies agreeing to do something together that neither will do alone, and the agreement's job is to answer what happens when one of them changes its mind. This guide covers the drafting and negotiation from the term sheet forward. It starts with the threshold question of structure, contractual or entity, and what each implies for liability, tax, and financing, then works through the scope and exclusivity provisions that define what the venture is and what each party may still do outside it. It covers contributions of cash, assets, and intellectual property, funding obligations and the consequences of a shortfall, and the governance architecture including reserved matters and deadlock. Later sections address intellectual property ownership and licensing, which is where technology joint ventures actually break down, antitrust constraints, transfer restrictions and exit mechanics, and termination and unwinding.
Sweepstakes, Contests, and Promotions: The Law of Prize, Chance, and Consideration
A promotion that combines a prize, an element of chance, and consideration is an illegal lottery in every state unless the government is running it. Remove any one of the three and it becomes a lawful sweepstakes or contest. This article explains the three-element framework and how to break it correctly, the federal statutes that reach lotteries through the mail and broadcast media, the state registration and bonding requirements that catch large promotions, the official rules and their required elements, the advertising and disclosure obligations that apply to how the promotion is marketed, the platform terms that operate as private law, and the tax, privacy, and international issues that follow.
Indemnification and Limitation of Liability: The Risk Allocation Engine of Every Contract
Two clauses decide what a contract is actually worth when something goes wrong: the indemnity and the limitation of liability. Everything else describes the deal; these two describe the consequences of the deal failing. This article explains both from the ground up. It covers what an indemnity actually does, the difference between third-party indemnification and the first-party indemnity that many drafters intend but fail to create, the duty to defend and why it is separate from and often broader than the duty to indemnify, and the procedural terms that determine whether an indemnity is usable in practice. It then covers limitations of liability: the direct-versus-consequential distinction and why it is harder than it looks after Hadley v. Baxendale, cap structures including super caps and unlimited categories, the standard carve-outs and how to negotiate them, the failure of essential purpose problem under UCC section 2-719, and the state law limits on exculpation including fraud, gross negligence, and public interest doctrines. A long section covers the specific indemnities that matter in technology transactions: intellectual property infringement, data protection, and open source. It closes with drafting language, a negotiation playbook, a worked example, an FAQ, and related reading.
Buying a Franchise: A Practical Guide for Prospective Franchisees
Buying a franchise is buying a contract, and the contract is drafted entirely by the seller and is largely non-negotiable. The disclosure document the law requires the franchisor to give you contains nearly everything you need to evaluate the opportunity, and most buyers do not read it carefully because it arrives at four hundred pages during an emotional decision. This guide covers what to do with it: how the FTC Franchise Rule works and what the disclosure period gives you, which of the twenty-three items in the disclosure document actually predict outcomes, how to read the financial performance representation and the outlet turnover tables, what the franchise agreement's key provisions mean in practice, how to conduct real diligence including franchisee validation calls, what is genuinely negotiable, and how to structure the entity, the lease, and the financing. It closes with the entity, lease, and financing decisions that surround the purchase, a four-week evaluation schedule, and the distinct analysis that applies when buying an existing unit from a departing franchisee.
Purchase Order and Terms of Sale Review Checklist: A Practical Checklist
Most companies have a purchase order form and an order acknowledgment form that were drafted years ago by someone no longer there, that have never been read against each other, and that contradict each other on every term that matters. Under UCC § 2-207 the usual result is that the conflicting terms cancel and the Code's default rules apply—which for a seller means full implied warranties and uncapped consequential damages. This checklist is a form audit: it walks each document's role in formation, the terms that must be present and how each must be drafted to survive, the process controls that decide who wins a form fight, and the master agreement approach that avoids the problem entirely above a defined threshold. This checklist audits both forms against each other, term by term, and identifies the changes that put your document on the winning side of the analysis.
Auto-Renewal and Negative Option Disclosure Checklist: A Practical Checklist
Subscription compliance is a design problem with a documentary requirement, and both halves are auditable in an afternoon. The design requirement is symmetry: whatever the signup takes in clicks, screens, seconds, and medium, cancellation takes no more. The documentary requirement is versioned screenshots of both flows, so that three years later the company can show what a particular subscriber actually saw. This checklist walks the enrollment flow element by element, then the cancellation flow with a stopwatch, then the records, governance, and metrics that a regulator or a plaintiff will ask for—and closes with the state-specific requirements that do most of the practical work.
Advertising and Consumer Protection Compliance Toolkit
Advertising law is unusual in that the same claim can be attacked by a regulator, a competitor, a class of consumers, a self-regulatory body, and a platform, each applying a different standard and offering a different remedy. This toolkit organizes compliance around that reality. It starts with the substantiation file that must exist before a claim runs, then covers the claim types that draw the most enforcement, the endorsement and review rules that changed substantially with the FTC's revised guides and its rule on fake and manipulated reviews, pricing and negative option practices, and the channel-specific rules for email, text, and telemarketing. Later stages cover promotions, comparative advertising and the competitor's Lanham Act remedy, the review process a marketing organization needs, and what to do when a demand letter, a civil investigative demand, or a NAD challenge arrives.
How Courts Read Contracts: Ambiguity, Extrinsic Evidence, and the Canons of Construction
Two courts reading the same contract can reach opposite results, and the reason is almost never the words. It is the threshold question of whether the court will look outside the document at all. This article explains that threshold, the two competing traditions that answer it differently, and everything that follows: the parol evidence rule and what an integration clause actually accomplishes, the interpretive hierarchy that puts express terms above course of performance above course of dealing above usage of trade, the canons of construction with honest assessments of what each is worth, and the drafting practices that prevent a dispute from turning on a doctrine.
Negotiating a Commercial Insurance Program: A Practical Guide
An insurance program is a contract portfolio that most companies buy the way they buy office supplies, and then discover the terms of only after a loss. This guide approaches it as a negotiation. It starts with the risk assessment that determines what to buy and how much, then works through the lines of coverage and what each actually does, how brokers are selected and compensated and why that matters to the outcome, how to prepare a submission that produces better terms, the policy provisions worth negotiating and the endorsements worth buying, and how the contractual insurance requirements in leases and vendor agreements have to be reconciled with the program that actually exists. It closes with renewal strategy and what to do when a claim arrives.
Agricultural Law: Land, Crops, Livestock, Credit, and the Statutes That Govern the Farm
Farming is one of the most heavily regulated businesses in the country and one of the least served by general business law. This article maps the field: the land tenure arrangements that govern most American farmland, the right to farm statutes and the nuisance disputes they were built for, the agricultural liens and statutory trusts that determine who gets paid when a buyer fails, the federal crop insurance and program payment systems that are frequently a farm's largest revenue line, the specialized bankruptcy chapter Congress built for family farmers, and the regulatory layers covering pesticides, organic certification, food safety, water, labor, and animals.
Electronic Signature Implementation Checklist: A Practical Checklist
Electronic signatures have been legally valid for twenty-five years, so validity is not the compliance question. Attribution is: proving that a particular person made the mark, years later, after the platform was replaced. This checklist builds a program around that reality. It tiers documents by risk and assigns a signing method to each, sets the credential and authentication controls that make attribution provable, specifies what the audit trail must capture and where it must be retained, handles the consumer consent process that most companies implement incorrectly, and enumerates the document categories that must still be executed on paper. It closes with signature authority controls and the vendor transition planning that preserves the evidence.
Government Contract Bid and Proposal Compliance Checklist: A Practical Checklist
A federal proposal is a compliance document before it is a sales document, and the failures that eliminate an offeror are almost never about the technical approach. They are missing certifications, a size representation that does not survive an affiliation analysis, an unaddressed organizational conflict of interest, a proposal that does not follow the solicitation's instructions, or a debriefing request filed a day late. This checklist runs the sequence from solicitation review through post-award: the bid decision, the registrations and representations that must be current, the size and affiliation analysis, the teaming and subcontracting structure, the proposal preparation controls, the pricing and cost data requirements, the clause review that determines what the company is actually agreeing to, and the debriefing and protest deadlines that are jurisdictional and unforgiving. The organizing point is that in federal procurement the deadlines are jurisdictional and the certifications are enforceable under the False Claims Act, so the compliance work precedes the sales work rather than following it.