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Best + Efforts = ?
There is a common misconception that the obligation to satisfy a “best efforts” clause requires rigorous performance, regardless of hardship or cost to the promisor. This misconception of the meaning of the term “best efforts” stems from the divergence between common parlance and jurisprudence. Considering the term in the vernacular, “best efforts” implies superlative action. Therefore, when one puts forth one's “best efforts,” such action is not simply good, or better, but the best according to one's capabilities. James M. Van Vliet, Jr., “Best Efforts” Promises Under Illinois Law, Ill. B.J. 5 (Dec. 2000). The implication is that to satisfy a promise for “best efforts,” there is no limit as to what one will do, no hardship or expense too great to satisfy the obligation. In fact, it would appear that many believe this to be the definition of “best efforts.”
Jurisprudentially, some courts have similarly applied a rigorous standard when interpreting the term “best efforts.” Courts have applied such strict interpretation of “best efforts” clauses to obligate a party to enlist every possible effort to fulfill such party's promise, regardless of the economic consequences. In analyzing “best efforts” as a component of “good faith,” the court in In re Heard suggested that a “best efforts” obligation should be satisfied even at a loss to the one fulfilling the duty. In re Heard, 6 Bank. 876, 884 (Bank. W.D. KY. 1980).
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
The DOJ's New Parameters for Evaluating Corporate Compliance Programs
The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.
Use of Deferred Prosecution Agreements In White Collar Investigations
This article discusses the practical and policy reasons for the use of DPAs and NPAs in white-collar criminal investigations, and considers the NDAA's new reporting provision and its relationship with other efforts to enhance transparency in DOJ decision-making.
A Lawyer's System for Active Reading
Active reading comprises many daily tasks lawyers engage in, including highlighting, annotating, note taking, comparing and searching texts. It demands more than flipping or turning pages.
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.