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.
Franchise Toolkit: Building and Buying a Franchise System
Franchising is two businesses at once. The franchisor sells and supports a system and lives under a disclosure and registration regime with real penalties. The franchisee buys a contract drafted entirely by the seller and largely non-negotiable, secured by a personal guaranty that outlasts nearly everything else. This toolkit covers both sides. For the franchisor: whether the arrangement is a franchise at all, preparing the disclosure document and registering, designing the agreement and the economics, managing the sales process, and the relationship statutes and antitrust constraints that govern the system. For the franchisee: reading the disclosure document for the items that actually predict outcomes, conducting validation calls, modeling unit economics honestly, and understanding what the personal guaranty covers.
Sponsorship, Endorsement, and Influencer Agreements: A Practical Guide
Paying someone to talk about a product creates two distinct legal problems, and companies usually address only one. The commercial problem is the agreement—what the endorser must deliver, what the brand may do with it, for how long, on what exclusivity, and what happens when the endorser does something embarrassing. The regulatory problem is that the resulting content is advertising, subject to substantiation requirements, disclosure obligations, and enforcement that now reaches the endorser and the agency as well as the brand. This guide covers both. It works through the FTC's revised Endorsement Guides and the disclosure standard they impose, the fake reviews rule and its penalties, then turns to the agreements themselves—sponsorship, endorsement, and influencer deals—and the terms that determine whether the arrangement produces value or liability.
Customs, Tariffs, and Import Compliance: Classification, Valuation, and Country of Origin
An importer owes duties on the basis of three determinations it makes itself: what the goods are, what they are worth, and where they are from. Customs reviews those determinations after the fact and penalizes errors. This article explains the framework: the tariff schedule and the interpretive rules that govern classification, the valuation hierarchy beginning with transaction value and the additions that trip importers up, the country of origin rules and how they differ for duty, marking, and trade remedy purposes, and the reasonable care standard that makes all of it the importer's responsibility. It covers Section 301 and 232 tariffs, antidumping duties, forced labor enforcement, and the protest, ruling, prior disclosure, and penalty procedures.
Choice of Law, Forum Selection, and Where Your Dispute Will Be Decided
Two short paragraphs near the end of most contracts decide which state's law governs the deal and which court hears the fight. They are drafted in minutes, negotiated rarely, and worth more than most of the substantive terms they sit behind, because the same facts produce different outcomes under different states' law and in different courtrooms. This article explains how each clause works and how courts actually treat them. It covers the choice of law analysis under the Restatement (Second) of Conflict of Laws, the substantial relationship and fundamental policy limits that let a court disregard the parties' choice, and the mandatory rules on non-competes, consumer protection, and franchise relationships that override contract language. It then covers forum selection: the difference between exclusive and permissive clauses and why that single word decides motions, enforcement under M/S Bremen and Carnival Cruise Lines, the procedural framework Atlantic Marine imposed for transfer under section 1404(a), and what happens when the chosen forum is a state or foreign court. Sections on the interaction with arbitration clauses, jury waivers, consent to jurisdiction and service, and internal affairs follow, with drafting language, a worked example, an FAQ, and related reading.
Handling a Product Recall: A Practical Guide
A recall is a compressed regulatory proceeding, a logistics operation, a communications event, and the opening chapter of the product liability litigation that follows, all running simultaneously on a clock measured in hours. This guide walks the sequence: how to recognize a reportable condition and what the reporting deadlines actually require under the CPSC, FDA, NHTSA, and USDA regimes, how the recall decision is made and documented, how to scope the affected population and why traceability determines the cost, how to build and execute the notification and logistics plan, what effectiveness checks require, and how to close a recall formally. It also covers insurance, the parallel litigation and criminal exposure, and the preparation that makes all of it survivable. The organizing point is that traceability built in ordinary operations determines the cost, and that late reporting—not the defect itself—is what draws the largest penalties.
Advertising FAQs: A Guide for Small Business
This is a plain-English, deeply practical FAQ on U.S. advertising law for small businesses, founders, and the lawyers who advise them. It explains the bedrock rule that ads must be truthful, substantiated, and not unfair under Section 5 of the FTC Act, then walks through the doctrines that trip up real companies: the substantiation requirement, express versus implied and monadic versus comparative claims, the FTC's reasonable-consumer and "net impression" tests, the 2023 endorsement and influencer disclosure rules, native advertising, "Made in USA" claims, the Green Guides, deceptive pricing and "free" offers, bait-and-switch, and comparative advertising. It covers the laws that govern how you reach customers, including CAN-SPAM for email, the TCPA for texts and robocalls, the Telemarketing Sales Rule, COPPA for marketing to kids, and the negative-option and "dark patterns" rules for subscriptions. It addresses competitor disputes under Lanham Act Section 43(a) and the role of self-regulation through the National Advertising Division and its Fast-Track SWIFT process. Throughout, it flags where federal law ends and the fifty-state patchwork of consumer-protection statutes begins, and it gives concrete, worked examples a non-lawyer can follow.
Insurance Coverage Toolkit: Placing, Tendering, and Litigating Claims
Insurance is the risk-transfer mechanism every business relies on and almost no business reads until it needs to. This toolkit covers the whole arc, because the outcome of a claim is usually determined at placement rather than at tender. It starts with reading a policy in the order that matters and understanding the difference between occurrence and claims-made coverage, then works through the placement decisions that determine what will be covered, the additional insured and indemnity architecture that decides whose policy responds in a construction or vendor relationship, and the notice mechanics that forfeit coverage more often than any exclusion. Later stages cover the tender letter, the duty to defend and the reservation of rights, independent counsel, settlement and consent, allocation among policies and periods, first-party claims and proof of loss, bad faith, and coverage litigation.
Transportation and Logistics Law: The Carmack Amendment, Broker Liability, and FMCSA Compliance
Freight moves under a body of law almost none of it borrowed from ordinary commercial practice. A cargo claim against a motor carrier is governed by a federal statute that preempts state law, imposes near-strict liability with four narrow defenses, and lets the carrier cap its exposure at a fraction of the shipment's value if it followed the right procedure. A freight broker occupies a different position entirely and faces a growing body of negligent selection litigation that the circuits have not resolved. This article covers the Carmack Amendment claim and defense framework, how brokers and forwarders differ from carriers and why it matters, the FMCSA safety regime that drives both compliance and personal injury exposure, owner-operator classification and the truth-in-leasing rules, and the parallel regimes governing ocean and air.
Force Majeure Notice Checklist: A Practical Checklist
A force majeure claim is won or lost on the notice and the record, not on the doctrine. Notice provisions are treated as conditions to relief, the deadlines are short, and the party claiming excuse bears the burden of showing that the enumerated event actually caused the failure and that it mitigated. This checklist covers the first forty-eight hours—read the notice provision before the force majeure clause, identify precisely which obligations are affected, and send a compliant notice—then the weeks that follow, where visible mitigation, a defensible allocation methodology among customers, and a contemporaneous file determine whether the claim survives. It also covers the response when a counterparty declares force majeure on you.
Debt Collection and the FDCPA: What Collectors May Do and What You Can Do About It
Debt collection is one of the few areas of American law where an ordinary person holds substantial procedural leverage and almost never uses it. This article explains the architecture: who counts as a debt collector and who does not, the validation and dispute rights that shift the burden to the collector, the conduct rules and the standard courts apply to judge them, and the private right of action with fee shifting that makes those rules enforceable. It covers Regulation F and its limits on contact frequency and social media, time-barred debt and the traps in acknowledging it, credit reporting disputes under the FCRA, and the judgment-collection stage where exemptions determine what a creditor can actually take.
Distribution, Reseller, and Channel Partner Agreements: A Practical Guide
Selling through partners multiplies reach and multiplies risk, because a distributor is simultaneously a customer, a competitor for margin, a representative of the brand, and a potential plaintiff when the relationship ends. This guide covers the agreement that governs all of that. It starts with the structural choice between a distributor who buys and resells, an agent who solicits on the supplier's behalf, and the hybrid arrangements in between, each with different tax, liability, and antitrust consequences. It then works through appointment and exclusivity, the pricing and incentive architecture that determines channel behavior, the ordering and supply mechanics, and the intellectual property and end-user terms that must flow down. Later sections address the antitrust constraints on channel restrictions, the dealer protection and franchise statutes that can convert a routine termination into a statutory violation, and the termination and transition provisions that decide what happens to the customers.
Contract Lifecycle Toolkit: From Term Sheet to Termination
A contract has a life longer than the negotiation that produced it, and most of the value and most of the risk are realized after signature by people who never read it. This toolkit follows a commercial agreement across its whole life. It starts with the term sheet and the binding-versus-non-binding problem, moves through formation questions that decide whose form governs, then works clause by clause through the provisions that determine what happens when something goes wrong: scope, payment, warranties, indemnity, liability caps, insurance, and termination. Later stages cover the operational half that companies neglect entirely: where signed contracts live, who tracks the obligations they impose, how renewals and price escalators are caught before they run, and what to do in the first week of a dispute, including the notice and cure mechanics that decide whether a termination is lawful.