pedr said:
Sure. I would have been surprised if liquidated damages were unenforceable - but people are using the word 'fine' and 'penalty', and I wonder how you could estimate/agree on a quantification of damages to WotC for the early release. All the discussion seems to suggest a true penalty clause, in the sense you used it, which we wouldn't enforce over here - apparently on the grounds that it's actually economically inefficient for people to be held to contracts which cost them less to breach than to honour, and economic efficiency being more important than holding people to their agreements. Or some such - it's been a long time, and I now avoid private law like the plague!
Usual caveats apply: I am a lawyer but I'm not your lawyer, this is not intended as legal advice, etc.
The statement above is basically a correct statement of US contract law. In every US jurisdiction that I am aware of, liquidated damages clauses are legal, but penalty damages are not. There might be a serious issue of proving that a liquidated damages clause for blowing a street date was actually intended as liquidated damages, not as a penalty, but, especially if the overall size of the liquidated damages is not too high, you might be able to get it upheld as a reasonable quantification of the damage to WotC's advertising campaign and relationships with other vendors. (Amazon and game stores might in theory be able to sue for tortious interference with contract/tortious interference with a business expectancy on the theory that they had contracts to sell copies of the books that were then terminated based on buy.com's wrongful behavior, but that would be an uphill argument.)
In theory, you could also argue that buy.com intended to breach at the time of contract formation, in which case it arguably constitutes fraud, not breach of contract-- the prior practice of breaking other street dates, if true, would be part of this argument. That would allow punitive damages, as opposed to liquidated damages intended to represent actual damages.
Also, of course, companies that sufficiently anger their business counterparties find that they have less people interested in doing business with them, so if WotC really cares, and buy.com doesn't have too much value to them as a customer, WotC might cut them off in the future. That's a major way of "enforcing" business contracts, because it's cheaper than getting lawyers involved. (Conversely, buy.com might agree to pay a penalty that they thought that they could beat in court to save the lawyers' fees and to try to preserve the relationship.)
BTW, wrt the earlier questions about a class action: that would be very difficult. The argument on buy.com's behalf would be that the individual fact patterns (i.e. what do the contracts say, what were the exact patterns of the alleged breaches) predominate over any common facts. Besides, without a number of similarly situated plaintiffs that is high enough that joinder is impracticable (i.e. generally more than 50), there is no need for a class action. So you would have to find lots of other vendors who have had street dates violated by buy.com, then argue that the situations are all sufficiently similar despite the different details of the contracts, the marketting, etc. I doubt that you would be able to pull it off.
