Minnick v. CLEARWIRE US LLC

*446Owens, J.

¶1 The United States Court of Appeals for the Ninth Circuit certified the following question:

Does Washington law treat the [early termination fee] at issue in this case as an alternative performance provision, or as a liquidated damages clause?

Minnick v. Clearwire US LLC, 636 F.3d 534, 538 (9th Cir. 2011) (hereinafter Order). This question is important because a liquidated damages provision is subject to a penalty analysis that an alternative performance provision avoids. The early termination fee (ETF) is a provision in a fixed-term telecommunications contract that charges customers…