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During the years in issue, TAG had about 23 sales
representatives. TAG hired only professional, experienced sales
representatives and had a very low turnover rate for sales
representatives. Most of TAG’s sales representatives had been
with TAG for more than 20 years.
TAG assigned sales territories to its sales representatives.
These sales territories were exclusive. If a sales
representative other than the one assigned to a territory made a
sale in that territory, then the sales representative to whom the
territory was assigned would receive the commission for that
sale. Before 1990, Hathaway’s assigned sales territory was
Kansas, Nebraska, and Iowa.3 Early in 1990, Hathaway’s sales
territory was expanded to include North and South Dakota,
Wyoming, and about 70 percent4 of Minnesota. Hathaway
effectuated most of his sales when traveling in this territory.
3 Before TAG hired Hathaway, Hathaway was living in Lexington,
Kentucky, and was another company’s sales representative for
Kentucky and southern Indiana. Hathaway originally was expected
to replace either TAG’s southern California sales representative
or TAG’s Seattle, Washington, sales representative. However,
when Hathaway came on board, TAG’s Oklahoma sales representative
was ill. Hathaway was assigned to learn the Oklahoma territory,
and the southern California and Seattle plans were scratched.
After the previous Oklahoma sales representative died, that man’s
brother, who had the Iowa territory, was asked to take over
Oklahoma and Hathaway was asked to take over Iowa.
4 The parties stipulated that Hathaway’s assigned sales
territory included 60 percent of Minnesota. Our finding,
contrary to the stipulation, is in accord with Hathaway’s trial
testimony, which was not objected to at the trial. This factual
point does not affect our analysis or conclusions.
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