Dobson Bay Club Ii Dd, LLC, a Delaware Limited Liability Company; Dobson Bay Club Iii Kd, LLC, a D — Bolick, J…

Summary

The dissent argues that a 5% late-payment fee in a commercial loan agreement between sophisticated, represented parties should be presumed reasonable and enforced as liquidated damages. It reasons that the lender's opportunity costs and other consequences of delayed repayment were substantial but difficult to forecast, while the borrower offered no contrary evidence. The dissent would reject the majority's conclusion that the clause was an unenforceable penalty.