Extract to table

To survive a motion to dismiss, a complaint must contain "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face

First, the amount fixed as liquidated damages must "bear[] a reasonable proportion to the probable loss" anticipated at the time of contracting

Second, the "actual loss" must be "incapable or very difficult of accurate estimation" at the time the contract was entered into

If either prong is not satisfied, the clause "must be construed as a penalty" and is unenforceable

At the pleading stage, the complaint must contain "sufficient factual allegations to make a lost profits claim plausible

Under Kenford I, lost profits must be "reasonably certain," not "merely speculative