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A Corrales lawmaker has called for an investigation into the Attorney General’s handling of a now-settled case that alleged unfair business practices by a large solar company.
State Representative Daymon Ely, a Democrat, asked the State Auditor’s Office to examine why Attorney General Hector Balderas agreed to seal all documents in a case against Vivint Solar Inc., and why the ‘AG did not pursue any specific restitution. for thousands of consumers in a settlement reached with Vivint last fall.
Ely says Balderas accepted a protective order requested by Vivint that apparently bars public access to more than a million documents in the case. The order, approved in August 2020 by 2nd Judicial District Court Judge Clay Campbell, hampers consumers’ ability to gather critical evidence when pursuing individual complaints against Vivint, and it may violate US law. State on inspection of public records, according to Ely and lawyers seeking restitution for clients.
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Ely asked State Auditor Brian Colón to investigate the AG’s handling of the case, specifically asking Colón to examine why no relief was included in the settlement agreement for around 2 300 New Mexicans allegedly defrauded by Vivint, and why the GA did not oppose Vivint’s request to seal most of the documents produced when the case was discovered.
“The AG’s office appears to be complicit in hiding from public scrutiny what could be a million documents, including documents critical of allegedly abusive practices employed by Vivint,” Ely said in a June 21 letter. in Colón. “… An investigation into the reasons why the GA did not oppose the closing of these documents will help me understand whether the legislature needs to revise the current IPRA statutes to fill what appears to be an unacceptable loophole. and gaping in our philosophy of open public records. “
Stephanie Telles, spokesperson for the auditor, said Colón staff were reviewing Ely’s request.
“A review was opened following receipt of the letter,” Telles told the Journal.
Balderas initially filed a lawsuit against Vivint in 2018, accusing the solar installation company of deceptive business practices that resulted in consumer fraud and racketeering involving thousands of homeowners in central New Mexico. The lawsuit said Vivint used “high pressure” and “illegal” door-to-door sales tactics to “trap” uninformed consumers into binding 20-year power purchase agreements. which have ended up costing homeowners more for the electricity they consume over time than they are. previously paid Public Service Company of New Mexico.
Although Vivint denied the allegations, it finalized a settlement with the GA in December, agreeing to change its marketing practices to ensure that all potential future clients are fully informed of the details of the contracts. He also accepted a settlement payment of $ 1.95 million, including approximately $ 1.24 million for the AG’s office and $ 709,000 in legal and attorney fees for a private law firm. who represented the GA in the case.
Vivint was acquired by national company SunRun last fall, but the legal agreements also bind the new owners.
The settlement, however, did not include any refunds for individual consumers affected by Vivint’s previous marketing practices. The original lawsuit asked the court to declare all of Vivint’s previous agreements with landlords as “voidable” if affected customers choose to void them, as well as monetary compensation for customers lured into contracts under bogus premises.
But these elements were not included in the final settlement.
Balderas told the Journal in May that the outcome of the case may help protect potential solar energy customers from misleading marketing in the future, and that the settlement funds will be reinvested in future efforts of solar energy. AG consumer protection. Additionally, the outcome could reinforce the individual claims of Vivint clients who themselves seek restitution from private attorneys, Balderas added.
Those comments – included in Journal articles published in May – encouraged Ely to dig deeper into the Vivint case. And that, in turn, has raised concerns about the settlement, which provides no direct relief to victims, the lawmaker said.
“It seems clear to me that this is not a good settlement,” Ely told The Journal. “It doesn’t seem to benefit consumers. “
Balderas said that individual consumers can achieve better results on their own than GA.
“Private parties can potentially get three times as much damage as the state could possibly get,” Balderas told the Journal Thursday. “It is more beneficial for consumers to pursue their own complaints. “
Behind closed doors ?
Nonetheless, the judicial protection order protecting most of the case documents from public scrutiny makes it more difficult for individuals to seek redress.
“Vivint produced over a million documents in the case, and they are all sealed,” Ely said. “… They should be made public, and I don’t understand why they aren’t. By not opposing Vivint’s request to make all of these documents confidential, the GA has essentially accepted a broad exception to IPRA, and the legislature must consider this.
Balderas said his office accepted the confidentiality order because it protected private information about the people gathered during the discovery.
“My priority is to protect the privacy of victims,” Balderas told the Journal. “I am not opposed to disclosure as long as there is the consent of the victims. Our interest was to protect their privacy until they gave that consent.
Threat to IPRA?
But lawyers representing individual consumers said the protection order had hampered efforts to gather evidence.
Consumer protection attorney Nicholas Mattison, for example, was unable to access case documents last year when he represented a married couple suing Vivint over a solar contract the couple signed under de alleged false promises from Vivint.
Mattison filed a brief opposing Vivint’s request for confidentiality before Justice Campbell signed the order, but to no avail. Mattison’s brief – which accused Vivint of hiding information under the guise of “trade secrets” – said the order set a “dangerous” precedent for IPRA.
“If the information could be protected from IPRA by a private agreement between a public body (the AG) and the party providing the information (Vivint), the IPRA would be severely weakened,” Mattison wrote in his brief. “… More troubling still, it seems likely that Vivint’s express intention was to escape IPRA.”
Patrick Griebel of Mars Griebel Law Ltd. was also unable to access most of the documents in the cases he is pursuing.
“I believe the information and evidence gathered by the AG during the investigation of a case belongs to the people of New Mexico,” Griebel told the Journal. “The victims in this case should have the tools to pick up where the GA left off. The AG’s investigation was on taxpayers’ money, and if the settlement agreement means that everyone is on their own to pursue restitution, then we should have access to the fruits of this investigation.