Although Richard Posner wrote a famous opinion in which he argued that a liquidated damages clause for a breach that produced little actual injury could not be enforced because it represented penalty damages, the fact is that, despite Mr. Cunningham's huffing and puffing, this case seems like a much better case for liquidated damages than the one that produced the Posner opinion.Here, it is simply impossible to know the extent of the damages produced by the breach of contract. Is there any way to estimate what viewership would have been without the breach? In Posner's case, actual damages were determinable.
Mr. Cunningham has learned what I like to refer to as "the lesson of Kohoutek." When comet Kohoutek approached Earth in 1973, about half the scientists said that it was a nice comet that was unlikely to make much of a display. The other half said that it was going to be a spectacular Christmas comet, recalling the time of Jesus' birth.
Guess which group of scientists got all the press, even though they had no idea what they were talking about?
Mr. Cunningham is right that it isn't a slam dunk that the liquidated damages clause is enforceable. After that, he's spouting nonsense.