Author: Consumers Law

Over the last decade, consumer complaints against U.S.-based solar companies have multiplied.

By Eli Wolfe                (Consumer Protection Attorney Andy Milz quoted below)

This piece originally appeared on FairWarning and was posted by Salon.

This sounds too good to be true, was one of Brenda Ortiz’s first thoughts when a salesman showed up at her front door in Riverside County, California, in October 2018. He was with Vivint Solar, Ortiz recalled him saying, and was working with her local utility, Southern California Edison, to find people who qualified for free solar panels.

Ortiz declined the offer. But she heard from neighbors that the salesman came back, stopping at homes along her cul-de-sac. One day, he swung by Brenda’s house and found her husband, Carlos, working in the garage. Carlos said he had been toying with the idea of getting a solar system, and he thought the salesman’s pitch to slash their electrical bill sounded good. He signed a power purchase agreement — a 20-year contract to pay Vivint Solar for power generated by the solar panels.

When the first bills came in, the couple realized their power costs were going up, not down.  “I was literally physically ill,” Brenda Ortiz told FairWarning.

For the first time, they took a close look at their 16-page contract. They recalled the friendly salesman saying they would pay only for the power they used.  But the contract said they would be charged for all the power produced by the panels. The salesman could not be reached for comment.

The Ortizes said they considered draping tarps over the panels to stop them from producing energy. But when they read their contract, they learned that even if the panels were disconnected, Vivint Solar would bill them for the estimated energy that would have been generated.

Frustrated, Brenda called the company to terminate the contract. She said she was shocked to learn that it would cost about $26,000 to cancel. She and her husband were trapped.

The solar industry has enjoyed massive growth in recent years. In 2016, it hit the milestone of one million installations in the U.S.; in 2019, it reached 2 million, and if current trends hold, there will be over 4 million by 2023.

With the world facing a mounting climate crisis linked to the burning of fossil fuels, the rapid growth of renewable energy is a huge positive. But the solar market isn’t all sunshine. Over the last decade, consumer complaints against U.S.-based solar companies have multiplied.

Hundreds of complaints to the Better Business Bureau cite grievances ranging from damaged roofs to poor customer service. Among them are claims that salespeople misrepresented the terms of power purchase agreements or leases. Some homeowners say they were tricked and locked into 20-year contracts that can’t be broken, short of paying the solar company tens of thousands of dollars.

“It’s ground zero for consumer protection violations these days,” said Andrew Milz, a Pennsylvania attorney who represents clients fighting with solar companies. “When you have young, motivated salesmen going door to door with vast amounts of research and data and information on the consumers… it’s just a recipe for abuse.”

In recent years, no company has racked up more complaints than Vivint Solar, a dominant player in the market. In October 2019, the Better Business Bureau reported that Vivint had 774 complaints over the past three years—well more than either Sunrun Inc. or Tesla-owned SolarCity Corp., two leading competitors. Vivint’s rating with the BBB is B+. Ratings are based on several factors, including volume of complaints and how companies respond to them.

Vivint refused requests to interview company executives. In response to a list of questions about specific consumer complaints, lawsuits and company practices, Vivint replied with a prepared statement that said the company doesn’t tolerate deception or fraud, and that it maintains a robust internal compliance system.

“We interact with more than a million consumers each year through our direct-to-home sales model, and are proud of the solar energy solutions that we provide,” the statement said. “As a consumer-facing business, from time to time we receive complaints or are involved in consumer disputes. We take allegations of wrongdoing, no matter how small, seriously and thoroughly investigate all allegations.”

Founded in 2011 as part of the Utah-based residential security firm, Vivint Smart Home, Inc., Vivint Solar is now a separate publicly traded company. It operates in 22 states and the District of Columbia, competing with long-established industry titans like Sunrun and SolarCity. Last year, Vivint was the second largest residential solar installer in the U.S., with over 188,000 cumulative installations as of December 2019, and $341 million in revenue. The company’s social media is filled with testimonials from satisfied customers.

For consumers, a sharp decline in the cost of solar panels and tax breaks like the federal Solar Investment Tax Credit have made it easier to purchase panels outright. But companies like Vivint also have offered customers leases and power purchase agreements.  Under the latter option, a company agrees to design, install and maintain panels on a consumer’s property for little or no upfront cost. The consumer pays for whatever power is generated each month, but depending on local and state programs, they may be able to save money on their bill by selling the excess power back to the utility grid. The solar company, which owns the panels, receives tax incentives and can sell renewable energy certificates. 

Because solar power is seen as so unambiguously good, some consumers may abandon caution when sales reps come calling. Along with the many customers who have done their bit for the environment and seen their power bills shrink, there are some, like the Ortizes, who mourn the day they put their name on a contract.

Amid such complaints, several states have taken action against Vivint.

On January 6, the company agreed to a $1.95 million settlement with New York’s attorney general following an investigation of Vivint’s business practices. The attorney general had accused the company of using deceptive sales pitches and said some of its panel installations had caused property damage. Vivint did not admit liability in settling the case.   

The agreement followed another last October with the New Jersey attorney general’s office, which had charged Vivint with failing to deliver promised energy savings. In that case, Vivint agreed to pay nearly $122,000 and change some of its sales practices.

In March 2018, New Mexico’s attorney general lodged a scathing complaint  against Vivint, claiming its sales reps misled consumers by telling them that 20-year contracts would save them substantial amounts of money. According to the suit, the company deliberately made its power purchase agreement opaque. Vivint has denied wrongdoing and has countersued, saying the attorney general has violated public record rules by withholding documents sought by the company.

“It seems like Vivint [Solar] is still one of the worst actors in the industry,” said Daniel Stevens, executive director of the nonprofit watchdog organization Campaign for Accountability. In 2018, the group sent letters urging state attorneys general in California, Arizona, Nevada, New York and Texas to investigate rooftop solar companies, with an emphasis on Vivint.

In lawsuits, complaints and interviews with FairWarning, customers have accused Vivint representatives of lying to them, duping elderly homeowners, forging emails and signatures on contracts and running unauthorized credit checks.

On consumer review sites like Yelp, consumers fumed about spending months trying to reach customer service agents to fix disconnected panels and incorrect bills.

“Perhaps the worst customer service I’ve ever experienced in my life,” wrote John D. of Alexandria, Virginia, on Yelp.

“They will violate their contract, promise you refunds you will never get, and give you crap products they will not uninstall,” wrote Kahlan A. of Las Vegas, Nevada.

“If they find out you’re calling to cancel, they’ll put you on hold and then avoid you. For days. And days,” wrote Crystal D. of Kapolei, Hawaii.

“I have been over billed and talked in circles for the past 7 months… I am now considering this to be a fraud situation and will be seeking legal representation,” wrote Tena R. of Stockton, California.

The solar industry wants to ensure that consumers aren’t ripped off by bad actors, said John Smirnow, general counsel and vice president of market strategy for the Solar Energy Industries Association. But, he added, customer grievances are also a natural byproduct of the industry’s growth.

“Solar is taking off,” Smirnow said, noting that tens of thousands of systems have been installed in California alone. As the industry expands and attracts more customers, he said, “the more issues and concerns you’re going to see from consumers.”

This is little comfort to several Vivint customers, who told FairWarning they have been battling the company for months. John Masone, a Massachusetts resident who bought a house that came equipped with Vivint panels, told FairWarning that Vivint failed to bill him for two years, then began calling him demanding thousands of dollars. He offered to pay for the energy he used in exchange for terminating the contract and removing the panels, but the company refused.

“I am in a standoff,” he said in an email.

A Vivint sales rep in Northern California who asked to remain anonymous because the company hadn’t authorized him to speak said the company in recent years has improved training of its sales force.

“So many of the problems that have been in the past are being solved,” he said, adding that some employees were recently fired because they failed to follow sales protocols. To prevent misrepresentations, he added, salesmen are periodically called on during trainings to perform their pitches so they can be refined, if needed.

“Frankly, I wonder how people can do things wrong and cheat,” he said. 

Thomas Powers, a former Vivint Solar sales representative from Arizona, said the company took pains to train its sales force to behave ethically. But some sales reps could be “overzealous” about finding creative ways to land customers, he added.

“We had some guys… they’d wear outfits that made you look like you worked for the utility company,” Powers said. Higher-ups in the company put a stop to this once they discovered it, he said.

This practice was detailed by lawsuits in several states, which said Vivint salespeople falsely claimed to be affiliated with local utilities, including Atlantic City Energy, Baltimore Gas & Electric, Pacific Gas & Electric and San Diego Gas & Electric.

Southern California Edison sued Vivint in November 2017 for trademark infringement after receiving “numerous complaints” about claims made in door-to-door solicitations in Southern California. The utility claimed that some sales representatives told customers they were “from Edison” or “in partnership” with the utility, while others allegedly counterfeited Edison logos and trademarks. In at least one case, salesmen were caught on a doorbell camera making misleading claims, according to the lawsuit.

The case settled in April 2018 after Vivint, without admitting blame, agreed to avoid any misrepresentations.

A former Vivint sales rep still working in the renewable industry described what she viewed as unethical marketing tactics. The ex-employee, who requested anonymity, said she was instructed to call potential customers who had already spurned Vivint’s sales appeals, and didn’t want follow-up calls.

“So that sucked, because all I could do was say ‘I’m sorry, I’ll mark here to make sure you aren’t contacted.’ But meanwhile I already know they’ve sent this list (of phone numbers) to other people,” she said. The employee also shared a script that she received during her training that emphasizes the money homeowners can save with solar.

In a video of a sales training session, at one time posted on Vivint’s Vimeo account, Jed Wintle, a salesman, instructed other reps to avoid detailed explanations, and to walk away from potential customers who ask probing questions. By selling people on the concept, he said, customers won’t ask about the fine print of a contract before signing.

Customers don’t read documents, he said, adding, “I could slide in anything I want. I wouldn’t. But I could.”

Wintle’s training advice appears at odds with a separate Vivint video on ethical standards. That video cautions against exaggerating the benefits of tax credits by suggesting the customer will get a “bag of cash.” In his video presentation, Wintle repeatedly likened tax benefits to “free money” and “bags of cash.” The videos were publicized in November 2019 by the investigative news outlet The Capitol Forum.

Although Vivint says it pitches power purchase agreements to consumers with strong credit scores, the former sales rep said she was encouraged to target low-income homeowners.

“They literally said to us they will ask you less questions and feel less entitled to information to compare their options,” she said.

A class action lawsuit filed in December in federal court in San Francisco also accuses Vivint of targeting low-income people. Two plaintiffs enrolled in a state program that already provides discounted electric rates to low-income customers were persuaded to sign Vivint power purchase agreements, according to the complaint. The brief stated that when one plaintiff who experienced problems with Vivint’s billing tried to have the panels removed, the company demanded about $40,000. The other plaintiff claimed that Vivint convinced her terminally ill father, who was already receiving subsidized rates, to sign a 20-year power purchase agreement. According to the suit, he died one year later, and when his daughter tried to rescind the contract Vivint said it would cost $21,000.

In March, the court ordered most of the plaintiffs to pursue their claims in arbitration.

In a deposition taken in a New Jersey case in 2019, Vivint sales rep Philip Chamberlin admitted that he entered incorrect email addresses for potential clients to temporarily keep them from receiving electronic copies of their power purchase agreements. Chamberlin said he learned the tactic through other sales representatives, according to the deposition.

Court papers filed in the case claimed that Vivint and Chamberlin had forged the signature of the plaintiff, Melissa Knight, and had engaged in similar frauds on at least six other occasions. Vivint denied the claims in Knight’s suit and filed a counterclaimdemanding her unpaid bills. The court ordered the case to arbitration, which Knight has appealed. FairWarning was unable to reach Chamberlain.

Three lawsuits in California that accuse Vivint of abusive sales tactics single out the same salesman, Tyler Williams. A case filed in 2018 in Alameda County, California, claimed that Williams forged the signatures of an 86-year old woman and her daughter on a power purchase agreement. Vivint has denied the allegations, and court records show the case is pending.

Another 2018 case filed in San Diego on behalf of an elderly widow accused Williams and another sales rep of forging her husband’s signature on a work order to install solar panels on a home she owned. According to court records, Vivint agreed to remove the solar panels after learning that her husband had died in 2015, three years before the work order was signed. Vivint denied the claim of fraud, and the case ended in a confidential settlement.

Williams was named in a third suit in San Diego in 2018. The plaintiff said that a different Vivint salesman falsely claimed to be working for a local utility, and said she qualified for free solar panels. She said that her signature was forged on a power purchase agreement, which was also signed by Williams—a man she said never met. Vivint argued that the lawsuit was based on a lie because the plaintiff admitted signing the power purchase agreement in an email and urged the court to allow the case to proceed to arbitration. The case was settled for a confidential sum at the end of 2018.      

Vivint did not respond to written questions about the lawsuits involving Williams, who is listed as a licensed sales rep for Vivint by the California Contractors State License Board.  In 2018, when the three lawsuits were filed, Williams appeared in a San Diego TV spot promoting Vivint, and in a podcast said he managed over 400 Vivint sales reps on the West Coast. Efforts to reach Williams were unsuccessful.

Many complaints about Vivint to the Better Business  Bureau are from consumers in California, the country’s biggest solar market

About 36 percent of the power from Vivint panels is generated in California, according to the company’s most recent annual report. Vivint is poised for further growth in the state, thanks to a new law that, with some exceptions, requires solar panels on new single-family homes. But the company has also seen opportunity in the highly publicized failure of big utilities to avoid blackouts caused by fires.

“It’s interesting, we knock on millions of doors a year at this company, and in California, it’s the highest penetration outside of Hawaii,” said Vivint Solar CEO David Bywater during a November 2019 earnings call. “But every door now is a fresh door again,” he said, partly because of the PG&E blackouts. “And so it kind of resets the market and allows you to go back and have a conversation again.”

Vivint has pledged to change some of its business practices in California. As part of a court settlement, the company said it will give sales pitches and contracts in the same language, following complaints about Spanish speaking customers getting contracts written in English.

Last year, California began requiring companies to give consumers a solar disclosure document, which is to be included in every contract. The document lists the cost of the system, contact information for the contractors licensing board and notice of a three-day right to cancel.

“As an industry, we do have an obligation to be proactive and educate consumers about the disclosure forms, and to make sure consumers are informed so when they’re talking to an installer they’re asking the right questions,” said Smirnow of the Solar Energy Industries Association.

Brenda Ortiz said she and her husband are still trying to come to an arrangement with Vivint Solar.

Among other things, Brenda said, Vivint wanted her husband to sign a non-disparagement clause, which would bar him from speaking about the company.

“I don’t want to stop telling people,” Ortiz said. “I don’t want to reach a point where I have to sign something that says I can’t say anything about Vivint.”

To potential buyers, she added, “For god’s sake, read the contract.”