A jury has found in favor of a Southern California-based
manufacturer’s representative in its breach-of-contract case
against a maker of swimming pool cleaners.
After a five-day trial in Orange County (Calif.) Superior Court,
jurors on Sept. 20 decided SWIM Inc. was entitled to damages
resulting from manufacturer Water Tech’s failure to fulfill
terms of a contract both had signed.
Water Tech, which is based in East Brunswick, N.J., plans to appeal
“It’s a significant decision,” said Adam Glazer,
the Chicago-based attorney who represented SWIM at trial. “In
the end, the jury validated our contract and … showed
manufacturer’s representatives that their contracts mean
Water Tech had hired SWIM in October 2007 to help it secure
business with Leslie’s Poolmart, as well as additional
retailers in the western part of the country, according to Water
For two years, the manufacturer had been trying to get its products
— including battery-powered, robotic, handheld and commercial
pool cleaners — into Leslie’s network of approximately
640 stores, company officials said.
Leslie’s began carrying Water Tech’s products around
The dispute centered on whether SWIM was, in fact, responsible for
the Leslie’s account, and whether it procured enough other
accounts throughout the region to satisfy its end of the
“They said we did not get the Leslie’s business, even
though they’d been trying to get it for years and
hadn’t been able to do it,” said Gene Fields, SWIM
founder. “So they said we violated the contract.”
In June 2009, Water Tech sought to terminate the agreement between
the two parties. It contends SWIM had no influence with
Leslie’s, and did not help it procure the account.
SWIM subsequently sued the manufacturer in August 2009 over its
refusal to pay full commission for nearly two years’ worth of
representation, Fields said.
“Our suit claimed they breached the contract because they
didn’t pay us properly,” he added. “They also
didn’t provide us with the proper sales records to determine
what commissions were due to us.”
SWIM further accused Water Tech of hiring two of its sales
associates while they were still under contract with the firm, and
of willful withholding of earned commissions.
Water Tech itself filed a countersuit alleging breach of contract
by SWIM over the Leslie’s business, as well as the contention
that SWIM did not sufficiently build Water Tech’s dealer base
throughout the West.
It also maintained that the sales associates in question were to be
terminated by SWIM, and said it agreed to hire them on the
condition they left the manufacturer’s rep firm first, said
Richard Cacioppo, Water Tech’s director of sales and
Jurors, however, rejected the countersuit and returned verdicts in
favor of the plaintiffs on the breach-of-contract segment of trial,
A judgment on the exact amount of damages to be awarded has not yet
been handed down. SWIM had asked for $157,000, and jurors agreed
with that figure. Circumstances of the case further allow for
damages to be trebled, which means a monetary award can be tripled,
if a judge so decides. Jurors also awarded interest,
attorney’s fees and additional fees, which, if upheld, could
result in a total of more than $1 million to SWIM, Fields
But Cacioppo said the matter is far from resolved. In addition to
planning an appeal, he has asked the Orange County district
attorney’s office to investigate a number of criminal issues
related to the case, including whether a witness for the plaintiff
may have committed perjury. “Some of the incongruities were
incredible,” he said.
Nonetheless, Fields hopes the decision will serve as a bellwether
in future cases where conflicts arise between manufacturers and