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.
1. The problem is that often the business people simply don't know — and sometimes CAN'T know — just what objective performance measures they might want, at least not before the fact. Sure, "aggressively" is imprecise. But it states the general intent and thereby helps get ink on the signature line. Most contracts never go to court; the business people know that and so to a certain extent will roll the dice about imprecise language. If a dispute did occur, the very imprecision of "aggressively" could well help promote settlement once the lawyers got involved and looked at the evidence.
2. This might be a case where the contract needs not just an agreed (imprecise) standard, but an agreed process for determining compliance or noncompliance. A dispute about "aggressively" could be a good candidate for (a) a nonbinding micro-arbitration or early neutral evaluation, coupled with (b) a fee-shifting provision:
(a) A quick, one-hour "hearing" by conference call, at the end of which the neutral gives a thumbs-up or thumbs-down;
(b) The losing party can challenge the neutral's "holding" in court — but it has to pay the winning party's attorneys' fees and expenses (and maybe prejudgment interest if applicable) if the challenge fails.
Apart from the good points that you make, Ken, I would also point out that the word "aggressively" doesn't have the same meaning in all countries. Acting aggressively to my UK ears is a bad thing not a good thing and for that reason I would never include the word in a contract (it suggests behaviour that is less than best practice – is the Distributor meant to behave in a ruthless or egregious way, and to take no prisoners?), although I recognise the different meaning in American English.
I actually had the same reaction that Mark did to the word, and here I am on the aggressive side of the water. The problem, I sense, is that "aggressively" is not meant to be a legal word, but is "businesspeak," rather like that alarming buzzword "partner" in its fuzzy connotation of "cooperate." Contract drafters should resist their clients' desire (politely, of course, explaining the issues) to incorporate their jargon into the document, and should use terms more capable of quantitative and qualitative analysis. I suspect that what the parties meant was more along the lines of "actively promote," so that the distributor couldn't just have the product available if anyone asked for it, but would include it in its marketing materials, produce materials specifically for it, etc. (of course, one could just say that in so many words, but that's rather more words).
I am way, way behind on reading all of your posts, Ken. After reading this one, on a Sunday, at my laptop, I had to write that I just about fell out of my chair, laughing so hard at your post, particularly the first question in your commentary.
I would have to vote for reasonable efforts, and at the same time, in working with internal clients / business people, I would take that opportunity to explain what "best efforts" is, and is not….