Liquidated Damages: The Good, The Bad and The Unenforceable

Jonathan Krisko and Emily Schultz led an in-house CLE presentation for a client. The pair discussed when to include liquidated damages in contracts, how to structure them so they may be enforced, and how lawyers can best position their client to obtain a judgment based on liquidated damages terms. Krisko and Schultz also shared how to spot contractual provisions that, although appearing as remedies similar in nature to liquidate damages, constitute unenforceable penalties and outlined the consequences of a ruling determining provisions cannot be enforced by the courts. The presentation included case examples and practical suggestions in representing clients on these issues.