Great scenario, but in the instance your speaking of there would something called an SLA (Service Level Agreement). That would be the grounds you would hold the them liable. Such is not the case with BFL.
There is one other alternative:
If BFL knowingly made false statements about the state of their product (like they would ship in 2 weeks when they had no working chips), you could file a civil case against them for fraud. There are 3 components needed to prove fraud:
1) Material false statements made. These forums are full of statements made by BFL that later turned out to be impossible. We need not discuss them at length.
2) Reliance on the statements by the victims. People hang on BFL's every word while trying to determine when (if ever) they can ship in volume. Whenever BFL reports that they will ship "in two weeks" TM, everyone who bought is reassured.
3) Damage to the victim was caused. Loss of income. If you offer to provide a product or service and then fail to do so, you have damaged the customer if they are relying on that product or service to make money. If BFL never claimed a ship date, nobody could rely on that date for the beginning of an income stream.
1) They believed they could do what they said (Good luck disproving that). No, if you read the history, not the trolling, they were very transparent about what happened.
I have been on these forums since before day one of BFL's FPGA business. There is documented evidence of them claiming things that could not possibly be true (claims of chip power measurements and later admitting they had not even received the chips yet, sending product to test labs for FCC certification then later admitting they changed their chips packaging because it melted, etc). Those are not trolls, they are facts and have been linked here ad infinitum. Always there are new posters who show up (unaware of the history or not following the links to hear BFL's own words) and claim it is all just made up and BFL never made false statements. That is the nature of internet forums. Of course, as soon as I start providing links to the statements made by BFL along with a timeline I become a "troll" and links to other peoples words are obviously just my lies to start flame threads...
One does not have to prove what they believe. One most only prove they knowingly made a false public statement to reassure their customer base about the state of the product.
2) Perhaps, but I will still hold that they (right or wrong) thought they could solve the issues and get it working at the times they said. This can be shown by them drop the FPGA production contract, because they actually thought they'd be delivering. (In hindsight they admitted they wished they had not done this, because they lost a lot of income)
They released statements to ensure their investors (some call them customers). There is no way on earth they could have measured the power output or hash speed of a chip that did not yet exist (which supposedly had 20% of their current power usage). They then waged a marketing campaign based on power efficiency, their chips were 5 times better etc etc. Nor could they have sent product for testing that ran so hot it melted the chip packaging.
They might have believed eventually that they could solve the problems, but the forums were clamoring for concrete milestones. Maybe they felt they had to provide something that demonstrated progress. They were after all in an intense 3-way marketing war with Avalon and bASIC for customers.
3) There was no victim here. Each person is responsible for evaluating their own risk/potential. At any point, any person can exit when they feel the risk is not acceptable.
Actually that is not correct. If you sell a product that did not exist and announce in a press release that product will ship in two weeks you are treading on very thin ice if it does not. This is not a case of selling a product that exists but cannot be obtained. This is selling a product that did not yet exist and misrepresenting the state of development.
This happens all the time in hardware manufacturing of servers, slip deadlines, etc. During the dot com boom it was rampant, there was nothing you could do about it with out an SLA contract (which you paid dearly with $$ for). It cost plenty of companies hard money and opportunity. All you can do is a proper risk assessment and decide to pull your order and go else where or wait it out. Same thing here. . .again it does suck horribly, but if your going to be in the mining "business" this needs to be considered in your assessments.
Again, selling servers that exist and function but cannot be obtained due to supply or manufacturing issues are governed by very different rules than products that do not yet exist and/or do not yet function. If you ever wondered why BFL only accepts Bitcoin or Paypal, it is because credit card companies will come after you if you sell products to their customers that do not exist. They were forced to ship a few products when Paypal demanded they do so to demonstrate the product existed (Jody admitted this).
lol 
hah thanks I need a nice laugh about now 
