Liquidated damages clauses are a risk allocation tool used across business, commercial, real estate and sometimes employment agreements. On the occurrence of certain carefully defined triggering events, the breaching party is liable for the liquidated damages amount. Triggering events run the gamut from failure to deliver marketable products on a timely basis to early termination of an employment contract, and countless other examples. Though these clauses are intended reduce the cost of post-closing litigation over damages, the scope of damages is not always knowable at closing and poorly drafted clauses actually stoke substantial litigation over scope and enforceability. This program will provide you a real world guide to the essential elements of enforceable liquidated damages clauses and how to anticipate and defeat challenges to them.
· Framework of law governing liquidated damages clauses
· Elements of a clauses – damages difficult to quantify and liquidated amount reasonably related to actual damages
· Drafting guidance on optionality, specificity, self-justification, and triggers
· Circumstances in which clauses are most effectively used – and those where they are ineffective
· Practical tips of enhancing enforceability and collecting damages
Shannon M. Bell, Kelly & Walker, LLC – Denver