Although commercial contracts frequently include provisions relating to the "effort" that the parties are required to make, the meaning of such provisions can often be the subject of litigation. This outcome is hardly surprising as courts themselves have recognized that interpreting efforts clauses under New York law "is anything but a model of clarity." Holland Loader Co. v. FLSmidth A/S, 313 F. Supp. 3d 447, 469 (S.D.N.Y. 2018), aff'd, 769 F. App'x 40 (2d Cir. 2019). And although a number of New York courts have sought to define so-called "best efforts" and "reasonable efforts" provisions, "the opposite is true with respect to 'commercially reasonable efforts' obligations." Id. at 471.

In this article we explore a few recent New York cases that have attempted to articulate clearer guidelines for interpreting what it means to make commercially reasonable efforts.

In Holland, Judge Gregory Woods of the Southern District of New York crafted the first clear "standard" for interpreting commercially reasonable efforts provisions under New York law. In that case, the court held that the defendant breached its duty to use "commercially reasonable efforts" in promoting the plaintiff's product because it failed to develop any marketing plans or strategies similar to the other products it sold. See Holland Loader Co., 313 F. Supp. 3d at 472-73.