Former solar company's NM customers still trying to resolve grievances

Aug. 6—Nearly three years after the New Mexico Attorney General's Office settled a lawsuit with Vivint Solar Inc. for alleged "consumer fraud" and "racketeering" involving thousands of local homeowners, most victims have seen little or no relief.

That's because the settlement agreement under former Attorney General Hector Balderas never requested direct restitution for nearly 3,600 homeowners cited as potential victims in the case. Instead, it left all affected consumers to file their own individual lawsuits to resolve grievances.

And now, one lawyer representing some of those homeowners says a protective order sealing some 1 million documents in the original lawsuit has prevented his firm and other attorneys from accessing needed information to help more consumers who remain locked into predatory contracts.

Patrick Griebel of Albuquerque-based Marrs Griebel Law Ltd. said his firm has worked with roughly 40 former customers of Vivint, which was acquired in 2020 by publicly traded firm SunRun. The settlement is binding on the new owner, and Griebel has been able to negotiate contract modifications with SunRun to improve terms and conditions for nearly two dozen of his 40 clients.

"I commend SunRun for responding to the situation in good faith," Griebel told the Journal. "But many more people are out there who don't know about the settlement. ...There's a huge gulf between those who attorneys have been able to represent and help and the total universe of people who need help."

Balderas' office filed a lawsuit against Vivint in 2018 for allegedly pressuring homeowners into adverse "power purchase agreements" through deceptive door-to-door marketing campaigns. Under those contracts, or PPAs, Vivint owned the systems it installed on customers' homes and charged the homeowners for all electricity produced, essentially replacing Public Service Co. of New Mexico as the consumers' utility provider.

Vivint promised significant savings — often projecting up to a 30% or higher reduction in electricity costs — but most of the 3,600 homeowners cited in the AG's suit either never saw any savings or ended up paying significantly more than if they had stayed with PNM.

Under the settlement, Vivint denied the AG's allegations, but promised to modify its marketing practices and pay $1.95 million to the AG's office, $700,000 of which was for legal expenses and attorney fees to an outside law firm that represented the AG, and the rest to boost the AG's budget for future consumer protection investigations.

No relief went to any of the homeowners in the original lawsuit. And, the AG agreed to Vivint's request to seal case documents, making it difficult, if not impossible, for Griebel and other attorneys to access the names and contact information for thousands of homeowners named in the suit.

The 40 customers Griebel has represented come from a list of about 100 homeowners the AG initially provided before signing the settlement with Vivint in fall 2020.

Griebel has asked staff lawyers under current Attorney General Raúl Torrez to supply more documents from the case, something the AG is now looking into.

"Production in this matter has been challenging in part due to the existence of a protective order stipulated to by the previous administration," AG Special Counsel Adolfo Mendez told Griebel in a letter last month. "Our plan is to disclose as much as possible within the constraints of the protective order. However, if that production proves to be insufficient to meet the needs of consumers in New Mexico, we will explore the option of filing a motion to lift the protective order."

Griebel said it's critical to get restitution for more former Vivint customers, not just to provide relief to them, but to show other consumers that solar can be financially beneficial, and to send a message to other companies to not engage in deceptive marketing schemes.