Doesn't matter if that doesn't hold in court. The whole problem is that loosing in court has no cost for them, but just going to court is a net loss for you.
Again, doesn't matter. Ruling takes years. If you take $40k from me to give them back to me 7 years later, I'm still screwed. Not to mention time, energy, stress, uncertainty, and the lost of opportunity.
It's all cost for me, none for them, just to make them behave decently in the first place.