Minnick v. CLEARWIRE US LLC

¶34 (dissenting) — The fundamental difference between liquidated damages and an alternative performance provision is that an alternative performance is intended by the parties — both parties — to be a real choice, while a liquidated damages provision is meant to be a device to ensure performance. Clearwire’s contract is an adhesion contract “signed” on line by its customers clicking a “yes” button. Clearwire asks us to believe that the fee it imposes on those who want out of the contract (or who breach the contract) is not intended as a device to ensure *459performance. With all due respect to my…