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'Best Efforts,' 'Commercially Reasonable' and Other Terms No One Understands
Contracting parties routinely use terms like “commercially reasonable” and “best efforts” to describe future performance, sometimes for strategic reasons, but usually because the demands of the deal do not permit the time needed to negotiate what steps will actually occur, or because the parties cannot agree and prefer to table the issue for another day, hoping it will not become a problem. As clients come to learn, however, adopting such undefined terms often leads to costly, time-consuming disputes.
In this article, we explore why these vague contractual terms are routinely used, explain how they have been inconsistently interpreted by the courts, and offer some practical tips to minimize the havoc ambiguous terms can wreak.
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.