Corporate & Securities Law

?Aggressively??

By Ken Adams

In a contract he drafted for an assignment, one of my Penn Law students used the word aggressively. I immediately turned to EDGAR, where I found 106 “material contracts” filed in the past year that contain aggressive or aggressively.

Here’s an example (emphasis added):

Distributor shall aggressively distribute and encourage the utilization of merchandising aids and promotional materials provided at no charge by Abbott Nutrition, in its discretion, in all Outlets throughout the Territory.

What the $@/^% kind of standard for obligations is the aggressively standard? Is it the same as reasonable efforts? (If you think it’s a more onerous standard than reasonable efforts, you encounter a familiar problem?more than reasonable = unreasonable.)

I’d run a mile from aggressively. Instead, I’d try to limit the vagueness by articulating some flat obligations addressing components of the broader performance: what funds are to be expended, applications filed, meetings held, what have you. The balance I’d cover using reasonable efforts.

Full post as published by AdamsDrafting on October 01, 2010 (boomark / email).