We are a CA corp that manufactures, wholesale and retails a specific nutritional product. We have had a supplier in Colorado providing us a key raw material for over 2 years. This key material is of critical importance for several specific products. Since 2016 we have placed many orders for the same material and received them in a timely manner. We always prepay an invoice with a wire transfer and delivery is generally in 2-4 weeks. We do not have a contract. We only prepay the invoice. The Invoice is e-signed by both parties.
In September 2018 we placed a phone order (with salesperson of 2 years). There was a delay of 3 weeks in getting us the invoice. The invoice was emailed for signatures (by E-Docs) in mid-October 2018 and clearly states a 10% discount that is specifically due to "Delay". This established an acknowledgment of delay in October. The $90,000 cost was promptly paid by wire transfer and delivery was planned for mid-November 2018. This date came and passed with no communication from the supplier. We have emails and texts from us, at the end of November, asking the status of the shipment. We have emails and texts from the supplier stating a new delivery date was being scheduled for mid-December. This date came and passed. From that time, every week we have been told (email, text, and phone) that there is a new delay of 1-2 weeks. There are over 50 emails and texts, all polite and professional, asking for status updates. We even flew from Los Angeles to their offices to meet face to face and were assured that the material would be delivered within days. That was nearly 2 weeks ago and my most recent reply, from the supplier yesterday, was "2 more weeks".
The supplier is fully aware of the importance of this material for our products. I have emails explaining to the supplier that because of this delay we have lost clients, cancelled trade shows, delayed expansion and hiring, cancelled marketing campaigns, lost a key sales person, stymied growth, and more.
This supplier (a privately owned company valued at $150,000,000) has always claimed that the material that they provide is the very best quality that can be found in the USA. We have built our brand on this "top quality". In addition, $90,000 is a big investment for us and it is not possible for us to just go find another supplier without this money. I say these things because we are bound to and dependent on this specific supply order. I have fully explained, by email, text and phone conversations to one of the supply company founders, who got involved directly in this matter in December, that we are suffering greatly due this this unfulfilled order.
It is important to explain that the nature of the material provides no reasonable explanation for this delay. Any single day, the production manager could have slotted this order to be produced, filled and delivered. This supplier is the largest in their industry and fills orders every day. There have been no company-wide excessive delays (floods, tornadoes, zombie apocalypse) since we placed our order.
Given this explanation can we successfully sue? If so how likely can we find an attorney to take this on contingency? What is the standard split for contingency? Can we seek damages for losses in excess of the $90,000? Are emails and text admissible? Given the blatant inexcusable negligence is it likely to receive additional damages including punitive damages in excess of $1,000,000 (our 2017 sales $165K, 2018 $370K, expected 2019 were suppose to be $800K-$1,400,000)? Do we have to sue in Colorado or can we sue in California? The company does not have a physical office in California.
Any guidance is greatly appreciated.
Jeff
