News & Analysis as of

Liquidated Damages Damages Breach of Contract

Bradley Arant Boult Cummings LLP

Liquidated Damages Disproportionate to Actual Damages Deemed Unenforceable

Construction contacts often include provisions that provide for pre-determined or “liquidated” damages in the event of a breach. Such provisions can provide certainty to the parties as to the consequences of a breach and can...more

Levenfeld Pearlstein, LLC

Taking Steps to Avoid Sinking the Liquidated Damages Clause in Contracts

Many contracts contain provisions regarding “liquidated damages,” which purport to fix the amount of money that one party will pay to the other in the event of a breach of their contract. Calling them “damages,” however, is...more

Morris James LLP

Superior Court Enforces $48 Million Liquidated Damages Provision

Morris James LLP on

Smart Sand Inc. v. US Well Servs. LLC, C.A. No. N19C-01-144 PRW CCLD (Del. Super. June 11, 2021) - A liquidated damages provision is enforceable under Delaware law if: (1) damages are uncertain at the time of contracting;...more

Akin Gump Strauss Hauer & Feld LLP

Triple Point Technology, Inc v PTT Public Company Ltd – Court of Appeal Overturned

Sir Rupert Jackson sitting in the Court of Appeal had found that the liquidated damages clause providing for liquidated damages to be paid for each day of delay by the contractor “from the due date for delivery up to the date...more

Akin Gump Strauss Hauer & Feld LLP

Take or Pay: Does the Law of Penalties Apply?

Q2 2020 saw a tangible increase in the number of queries from clients asking about the enforceability of take or pay clauses common in supply agreements. Intermingled with questions around force majeure, the key issue appears...more

Porter Hedges LLP

Alert: "SCOTX Affirms Second-Look Approach For Liquidated Damages, Clarifies Each Side's Burdens"

Porter Hedges LLP on

Nearly six years after its opinion in FPL Energy, LLC v. TXU Portfolio Mgmt. Co., the Texas Supreme Court once again took up the issue of whether liquidated damages constitute an unenforceable penalty in Atrium Medical...more

PilieroMazza PLLC

Liquidated Damages Clauses: Important Considerations for Business Owners

PilieroMazza PLLC on

When drafting or negotiating any contract, businesses should give careful consideration to avenues of recovery in the event of a breach by the other party. At times, this determination is straight-forward, such as where a...more

White & Case LLP

Termination & Liquidated Damages: Less Clear than Ever

White & Case LLP on

The Court of Appeal of England & Wales considered, in respect of a delayed software project, whether a liquidated damages provision survived termination of the contract....more

Jaburg Wilk

An Easy and Effective Way for Employers to Protect Themselves

Jaburg Wilk on

Imagine this scenario: Your company is in Arizona and one of your sales representatives goes to work for a competitor. He knows all about your pricing and bidding practices, so he helps your competitor undercut your prices....more

Arnall Golden Gregory LLP

Damage Control: Common Errors in Contractually Limiting Damages

We’ve all heard the proverb, “Prepare for the worst, but hope for the best.” Nowhere is that advice more fitting than in drafting a contract. Of course, the main focus of any negotiation will be the terms of the deal itself –...more

King & Spalding

A Cautionary Tale: English Courts Further Depart from a Traditional Approach to Liquidated Damages in Unaoil v Leighton

King & Spalding on

In September 2014, the Commercial Court handed down an unprecedented decision, finding that a liquidated damages ("LD") clause in a contract was a "genuine pre-estimate of loss" at the time the parties entered into the...more

Williams Mullen

Liquidated Damages – Carefully Crafted to Avoid Litigation

Williams Mullen on

Necessity may be the mother of invention, but uncertainty is certainly the mother of litigation. In the context of construction contracts, the uncertainty that most often results in an expensive trial is not whether a party...more

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