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ATTORNEY GENERAL OF THE STATE OF NEW YORK
CONSUMER FRAUDS AND PROTECTION BUREAU
_________________________________________
In the Matter of
Assurance No. 19-161
Investigation by Letitia James,
Attorney General of the State of New York, of
Vivint Solar, Inc. and Vivint Solar Developer, LLC,
Respondents.
_________________________________________
ASSURANCE OF DISCONTINUANCE
The Office of the Attorney General of the State of New York (“NYAG”) commenced an
investigation pursuant to Executive Law § 63(12) and General Business Law § 349 into Vivint
Solar, Inc. and Vivint Solar Developer, LLC (“Vivint Solar” or “Respondents”) regarding Vivint
Solar’s marketing, sale, and service of consumer contracts. This Assurance of Discontinuance
(“Assurance”) contains the findings of the NYAG’s Investigation and the relief agreed to by the
NYAG and Respondents whether acting through their respective directors, officers, employees,
representatives, agents, affiliates, or subsidiaries (collectively, the “Parties”).
NYAG’s FINDINGS
General
1. Vivint Solar, Inc. is a foreign business corporation located at 1800 West Ashton
Boulevard, Lehi, Utah 84043.
2. Vivint Solar Developer, LLC is a foreign limited liability company located at
1800 West Ashton Blvd., Lehi, Utah 84043. Vivint Solar Developer is a licensed contractor in
the State of New York.
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3. Vivint Solar provides solar energy to residential consumers by either selling solar
energy to consumers or selling or leasing solar panels to consumers. Solar energy, as a
renewable energy source, is better for the environment than traditional energy sources.
4. Vivint Solar has been operating in New York since late 2012 marketing, selling
and servicing its products.
5. Vivint Solar offers three solar energy options to consumers: A Power Purchase
Agreement (“PPA”) (which accounts for the majority of its contracts), the purchase of solar
panels (“Purchase”), or the lease of solar panels (“Lease”). Regardless of the option, the
consumer must pay his or her traditional energy provider to be connected to the energy grid as
well as for any additional energy that the consumer needs beyond what is produced by the solar
panels.
6. Vivint Solar provides consumers an extended right to cancel the PPA and Lease
(until work associated with installing a solar energy system on a consumer’s home begins) that
exceeds federal and state minimum requirements, and a similar right to terminate a Purchase.
7. Under a PPA, Vivint Solar and a consumer enter into a 20-year contract for the
consumer to purchase power from Vivint Solar. Vivint Solar installs solar panels, which Vivint
Solar continues to own, on the consumer’s roof. The consumer then pays Vivint Solar for the
solar energy produced by Vivint Solar’s solar panels, measured in kilowatt-hours (“kWh”),
which is a unit of energy representing 1000 watts of power used for 1 hour. The price that the
consumer initially pays per kWh is set by the contract, and that price per kWh increases 2.9% per
year, compounding annually for the life of the contract. PPAs are by far Vivint Solar’s most
prevalent solar energy option. As of September 30, 2019, Vivint Solar had installed
approximately 13,460 solar energy systems under PPA contracts with New York customers.
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8. Under a Purchase, a consumer purchases the solar energy system from Vivint
Solar and the customer then owns the solar energy produced. The Purchase option can be
financed through a loan or the consumer can pay for the system at the outset. The Purchase
option became available in New York in 2016 and is Vivint Solar’s second most prevalent solar
energy option. As of September 30, 2019, Vivint Solar had installed approximately 701 solar
energy systems under Purchase contracts with New York customers.
9. With a Lease the consumer pays to lease the solar energy system rather than pay
for the energy produced by the solar panels, and like a Purchase, the consumer then owns the
solar energy produced. Under a Lease, however, Vivint Solar owns the system, and the
consumer pays a fee for the right to use it. The Lease option became available in New York in
2018. As of September 30, 2019, Vivint Solar had installed approximately 284 solar energy
systems under Lease contracts with New York customers.
Vivint Solar’s Marketing, Advertising, and Sales Practices
10. Vivint Solar primarily markets its products through door-to-door sales.
11. In door-to-door solicitations, Vivint Solar’s sales personnel pitch Vivint Solar’s
products and provide consumers with flyers, brochures, handouts and other materials. Sales
personnel may also leave handouts and other marketing materials, such as door hangers and lawn
signs, at the homes of consumers with whom they do not personally interact. For purposes of
this Assurance, “Sales Personnel” refers to all individuals or entities who engage with New York
consumers in the marketing, advertising, promotion, or sale of Vivint Solar’s products to
consumers, whether or not those individuals or entities are employed directly by Vivint Solar, by
“dealers”, by contractors, or affiliated with Vivint Solar through some other means. In Vivint
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Solar materials and documents, Sales Personnel are sometimes referred to as “sales
representatives,” “sales reps,” or “sales managers.”
12. Vivint Solar also advertises on its website.
13. Vivint Solar’s marketing and advertising has, in some cases, been false,
misleading, or deceptive. Such false misleading, or deceptive conduct includes
misrepresentations about potential savings made by Sales Personnel, on hard copy marketing
materials, and on Vivint Solar’s website.
14. Some Sales Personnel have failed to disclose that the salesperson is selling Vivint
Solar’s products, instead representing that the salesperson works for the consumer’s utility, in
violation of Vivint Solar’s policies.
15. Some Sales Personnel engage in high pressure sales tactics to induce consumers
to sign contracts without being given an opportunity to review or fully understand the terms of
the contract before they sign it.
16. Because Vivint Solar’s sales force is compensated through a commission-based
structure, some of Vivint Solar’s Sales Personnel may have been incentivized to engage in such
deceptive practices.
17. Although Vivint Solar has instituted a set of “Ethics Standards,” which have
evolved over time, to address such behavior, those policies have not been adequately enforced
and violations have continued to occur.
Representations Regarding Pricing and Savings
18. Through its marketing materials, website, and sales presentations, Vivint Solar
has overstated potential savings from using Vivint Solar’s products and services. Vivint Solar
advertised savings based on a comparison of energy rates charged by the consumers’ utility
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companies and by Vivint Solar at 10% to 30% before February 2018 and up to 20% since
February 2018.
1
Yet, the higher end of both of these rate-based savings representations were
generally not attainable.
2
19. During the time that Vivint Solar touted potential savings of 10% to 30% (as well
as for approximately the first three months when Vivint represented that savings were up to
20%), Vivint Solar set the cost of energy for its PPAs at a rate that assumed an average cost
savings of 18% across New York.
3
20. In June of 2018, Vivint also introduced its “Dynamic Pricing” model. Under the
Dynamic Pricing model, Vivint Solar presented a “list price” to New York consumers, (disclosed
in consumers’ PPA contracts) and Sales Personnel could then offer prices below the list price.
The list price, which is fixed, represents the maximum price for energy for a PPA and, as stated
in Vivint’s own written policy, “is reasonably expected to provide Customers in the [region] with
at least five percent (5%) energy cost savings when compared to the average utility rate generally
applicable to residential consumers in the [region].” If Sales Personnel offer a PPA with an
energy price below the list price, their commission is likewise reduced – the lower the price, the
lower the commission.
1
Vivint Solar also revised its Marketing and Advertising Policy in December 2019 to prohibit
use of these statements, and to require that savings claims be utility-specific.
2
Vivint Solar asserts that in addition to any rate-based savings, New York consumers stand to
save money on the whole, if consumers are able to utilize a New York tax credit, as discussed
below in paragraph 28.
3
The average anticipated savings within each region based upon Vivint Solar’s rates when
compared to the average utility rate in the respective region is as follows: Orange & Rockland:
20%; Consolidated Edison: 20%; PSEG-Long Island: 15%; Central Hudson Energy: 14%;
National Grid: 15%; New York State Electric and Gas Corporation: 4%
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21. While Vivint Solar expected that approximately 98% of its customers would
experience some rate-based savings under both pre- and post-Dynamic Pricing, Vivint Solar
knew that the majority of New York consumers would not experience its advertised rate-based
savings and that some consumers would experience no such savings or even have increased
costs, given market realities in New York.
22. As the utility companies’ energy rates fluctuated from region to region, Vivint
Solar’s rates in those regions did not change, resulting in higher costs for certain consumers
rather than savings. For example, when the energy rates charged by New York State Electric and
Gas Corporation or National Grid dropped, Vivint Solar’s offered rates were sometimes higher
than the utility companies’ rates. Vivint Solar continued to advertise the same savings to these
consumers despite the market realities.
23. In addition, Vivint Solar has failed to adequately disclose that advertised
purported savings are only for the first year of contract and not over the 20-year life of the
contract.
24. Although Vivint Solar has led consumers to believe that their savings will be long
term, Vivint Solar does not, and cannot, know the price of energy from the consumer’s power
company going forward during the 20-year life of consumers’ contracts.
25. Moreover, Vivint Solar’s PPA contracts provide for an annual, compounding
2.9% increase in the PPA energy rate for consumers that does not vary even if the price of
energy from the power company were to drop. By the end of a 20-year contract, consumers will
be paying an increase of 70% above their initial PPA rate. Yet Vivint Solar does not adequately
disclose this overall increase.
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26. In its contracts, marketing materials and in-person communications with
consumers, including during scripted welcome calls, Vivint Solar has represented that the
consumer’s energy rate “will not increase more than 2.9%.” Such representations create the
impression that the increase may be lower than 2.9% and that 2.9% is the maximum. In fact, the
increase is always 2.9%. In 2018, Vivint Solar changed the statement in its contracts and in its
scripted welcome calls from “will not increase by more than 2.9%” to “will increase 2.9% per
year.”
27. In other instances, Vivint has failed to disclose that this price increase exists at all,
indicating that the rate is set or predetermined and that the amount that they pay per kWh will not
change. In reality, the rate of energy will increase is set at 2.9%, compounded annually.
28. In addition to the advertised rate-based savings, Vivint Solar Sales Personnel have
represented to consumers during sales presentations that they can also save money through tax
credits, rebates, or incentives if they sign a contract with Vivint Solar for solar energy. New
York’s Solar Energy System Equipment Credit income tax credit is available to qualifying
consumers using solar equipment on their property, regardless of the ownership of that
equipment itself. New York consumers can deduct up to 25% of solar expenses from their
income tax for 15 years, with a maximum credit of $5,000. Vivint Solar believes that New York
consumers stand to save money on the whole, and in some cases over 30% of their utility costs
pre-solar, if consumers maximally utilize the New York tax credit. Yet not all consumers are
able to take advantage of New York’s Solar Energy System Equipment Credit income tax credit
because not all consumers have sufficient income to deduct solar expenses from their income
tax, particularly elderly consumers who may have limited income streams. In addition, as
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discussed below in paragraph 42, Vivint Solar’s contracts with consumers previously stated,
inaccurately, that consumers were not eligible for any tax credits
29. Further, under a PPA or Lease, Vivint Solar, as owner of the solar panels, is the
party that benefits from tax credits, rebates, or incentives, other than New York’s Solar Energy
System Equipment Credit. Vivint Solar’s Sales Personnel failed to differentiate between federal
and state benefits, and consumers have complained that Sales Personnel have represented that
consumers would receive tax credits, rebates, or incentives to which they are not entitled.
Vivint Solar’s Contracts and Sales
30. Vivint Solar requires consumers to enter into complex contracts to purchase or
lease solar power but does not always give consumers an adequate opportunity to review their
contracts before signing and currently does not automatically give consumers a hard copy of the
PPA, Lease, or Purchase contract (but will do so upon request). From late 2015 through
February 2019, those contracts were presented and signed on tablets or iPads which at times
made the contracts difficult to review on the spot, especially in the context of door-to-door sales.
Although the PPA contracts incorporate by reference a “Customer Packet,” until July 1, 2018
Vivint Solar did not provide consumers with any opportunity to review the Customer Packet at
the time the contract was signed; the Customer Packet was made accessible to consumers at a
later date, after the PPA was signed but during a time when a customer retained the right to
cancel the PPA. Since July 1, 2018, Vivint Solar has required that the Customer Packet be
reviewed before the PPA is signed. Since February 2019, PPA, Lease, and Purchase contracts
have been provided to customers by way of DocuSign, which involves sending the contract to
the customer’s email address for review and execution.
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31. Consumers have alleged that during the time consumers signed agreements on a
tablet or iPad, Vivint Solar Sales Personnel failed to allow them adequate time to review
agreements, providing only a “summary” of the terms, and skipping directly to the signature
page, which conduct Vivint Solar contends violates its current policies.
32. Consumers also allege that Vivint Solar Sales Personnel misrepresent that
consumers are only signing preliminary paperwork when the consumers are, in fact, signing
binding contracts, which conduct Vivint Solar contends violates its current policies.
33. Still other consumers allege that their signatures have been forged on electronic
contracts or that their electronic signature was impermissibly copied from one document to
another.
34. Although the contract requires the consumer’s email address for the purpose of
establishing the consumer’s account, Sales Personnel have inserted their own email address and
not the consumer’s, which denies the consumer the ability to access the contract and other
materials.
35. Generally, Vivint Solar consumers sign PPA contracts setting a price for solar
energy before Vivint Solar performs its site survey process, which includes evaluating a
consumer’s home, roof, electrical systems and sun exposure to determine suitability for installing
a solar energy system). After the contract is signed and Vivint Solar performs an analysis of the
property (but before installation work had begun, while consumers maintained their right to
cancel or terminate), Vivint Solar occasionally has required consumers to sign a new contract at
a higher price. Vivint Solar’s pricing practices have shifted over time. Initially if prices were to
increase because of site survey factors, (for example if the consumer’s home gets less sunlight
than anticipated), Vivint Solar would cancel the contract. Subsequently, based upon the outcome
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of the site survey, Vivint Solar might require the consumer to agree to a higher price. And
currently, under the Dynamic Pricing model (described above in paragraph 20), Sales Personnel
have the discretion to require consumers to sign a new agreement at a higher price, in order to
move forward. If the site survey were to result in higher costs, Sales Personnel can leave the
consumer’s original price in place and accept a decreased commission from the sale, or Sales
Personnel can increase the consumer’s price, in which case the commission will not be
negatively impacted, or could even increase. Notably, Sales Personnel can also require that a
consumer pay a higher price (up to the “list price”), thereby increasing their commission,
regardless of the site survey results (i.e., even if the site survey does not indicate that the rate
should be higher).
36. Vivint Solar has voluntarily conducted a “pre-install survey” (until September
2015) or “welcome call” (since April 2017), which consists of a recorded phone call with a
customer, in an effort to ensure that consumers’ information is correct and that consumers
understand the contract that they have signed. From September 2015 through April 2017, Vivint
Solar did not conduct a call of this type with consumers. However, these calls generally occur in
the presence of Sales Personnel and/or within the context of high pressure door-to-door sales.
Welcome calls are not designed to identify instances where consumers are being coached by
Sales Personnel during the call (which sometimes occurred, as revealed following investigation
of complaints and as part of Vivint Solar’s random audits of welcome calls, as well as NYAG’s
investigation into Vivint Solar’s conduct), and were also not initially designed to verify, beyond
asking a “yes” or “no” question, whether a consumer’s information is accurate, including
whether the consumer’s email address, which is critical for establishing a consumer’s account,
and which was the subject of a “yes” or “no” question until February 2019, did not belong to the
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consumer. For example, Vivint Solar’s representatives performing welcome calls failed to
identify some instances where Sales Personnel used his or her own email address on the
consumer’s account.
37. Some sales presentations were conducted in Spanish, yet Vivint Solar did not
provide consumer with corresponding contracts and documents in Spanish, as required by New
York Personal Property Law § 428 and 16 CFR § 429.1.
38. Some Vivint Solar Sales Personnel have sold products and services to elderly
consumers, who may be more vulnerable to the pressures of door-to-door sales, and who may
lack the sophistication to understand complex contracts, including that the contracts are binding
for 20-years, a term that will exceed the lives of many of the elderly consumers, and will become
a liability of the estate.
39. Some elderly consumers have complained that they are not comfortable
transacting business in purely electronic form, including reviewing documents on a tablet or
iPad, receiving necessary documentation electronically, reviewing and paying bills
electronically, and even sending and receiving email.
40. Because Vivint Solar’s practice is to transact business electronically, consumers
do not automatically receive hard copies of contracts and other documents referred to in the
contract (but may request hard copies). As a result, some consumers have failed to receive
copies of executed contracts, in violation of New York law, Personal Property Law Article 10-A.
Vivint Solar’s emails containing contracts may not reach consumers for a variety of reasons,
including typos in entering email addresses, email servers’ spam filters, technical glitches, or
malfeasance by Sales Personnel as described above. Vivint Solar further creates obstacles for
consumers to receive hard copy contracts and other necessary documents by including references
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to fees for requested documents in its contracts (though Vivint Solar does not charge fees to
provide a hard copy of a PPA, Lease or Purchase contract).
41. Under New York law, Personal Property Law § 428, contracts must contain
duplicate copies of a “notice of cancellation” form, which the consumer may use to cancel the
contract by mailing or otherwise delivering a signed copy of the notice of cancellation. Vivint
Solar has, in some instances, violated the law which has made it difficult for consumers to
exercise their cancellation rights.
42. Additionally, until November 2018, the terms of Vivint Solar’s contracts with
consumers inaccurately stated that Vivint Solar owns all the “credits, rebates, incentives,
allowances, tax benefits. . . that are attributed, allocated, or related to the System, the Energy, or
environmental attributes thereof,” thereby creating the impression that consumers are not entitled
to New York’s Solar Energy System Equipment Credit income tax credit if they are using solar
equipment on their property, regardless of the ownership of that equipment. However, as
discussed above in paragraph 28, this tax credit is actually not tied to ownership of the
equipment but its use. On October 16, 2018, Vivint Solar submitted to the NY Department of
Public Service – Public Service Commission (the “PSC”) proposed revisions to the PPA
contracts clarifying the inaccuracy regarding New York’s Solar Energy System Equipment
Credit, which changes were approved by the PSC in late November 2018. Since March 2018,
Vivint Solar’s PPA has included a description of the New York Solar Energy System Equipment
Credit as part of an exhibit, entitled “New York Disclosures.
Solar Panel Installation, Operation, and Maintenance
43. As alleged above, Vivint Solar has generally required consumers to sign contracts
before performing a site survey.
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44. Vivint Solar has also failed to inspect some consumers’ roofs to ensure that they
are fit for the installation of solar panels before consumers sign contracts. When roof inspections
do happen post-contract signing, at times the inspections are not adequate to ensure that
consumers’ roofs are fit for solar panel installation. As a result, in some cases, Vivint Solar
installs solar panels on roofs that lead to damage to consumers’ roofs and other parts of their
homes.
45. Some consumers have complained about damage to their property caused by the
installation process itself, including damage to consumers’ roofs and other parts of the home and
leaks and water damage resulting from faulty installation.
46. Some consumers further complained that Vivint Solar fails to timely remedy
damage it has caused or remove solar panels to allow consumers to make repairs, delays
inspection and repair, and disavows responsibility for damage.
47. In some cases, Vivint Solar’s solar panel systems have not functioned properly.
Solar energy systems have either produced less energy than intended by Vivint Solar’s system
design or have not produced any energy at all.
48. Some consumers have complained that Vivint Solar fails to adequately operate
and maintain solar energy systems, including by and failing to monitor systems that are not
functioning appropriately and producing less energy than intended or producing no energy at all,
as well as by failing to timely remedy systems that are not functioning appropriately.
49. Over the course of a 20-year contract with Vivint Solar, there is a high likelihood
that a given roof will need repairs. Vivint Solar fails to give consumers sufficient information
about additional costs that they will almost certainly incur when the time comes to remove and
replace the solar panels.
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Other Deceptive Practices
50. Some Vivint Solar Sales Personnel utilize referrals from existing customers, for
which referring customers may be paid a referral fee if new customers sign contracts with Vivint
Solar and end up with systems installed on their homes, but do not always pay promised referral
fees.
51. Some consumers have alleged that Vivint Solar has overbilled them by i) billing
them for solar energy even when the consumer’s solar energy system is offline, and the
consumer is not receiving any solar energy from Vivint Solar and ii) charging consumers rates
for energy that are higher than the rate dictated by contract.
52. Consumers allege pervasive customer service deficiencies.
53. Among other things, consumers experience significant delays and hold times
when calling Vivint Solar.
54. When such consumers reached a Vivint Solar representative, they were often
transferred between representatives and given misinformation or contradictory information.
55. Representatives often failed to call consumers back as promised. When
representatives do eventually call consumers back or when consumers follow up themselves,
consumers often have to start from scratch, as the customer service representatives have
inadequate information about individual consumer’s issues or no information at all.
56. Consumers often cannot get Vivint Solar to timely schedule repairs or
maintenance, including temporarily removing solar panels to perform roof repairs, and have at
times encountered complete non-responsiveness from Vivint Solar regarding complaints and
issues.
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57. NYAG finds that Respondents’ practices as described in paragraphs 1 – 56
constitute repeated violations of New York Executive Law § 63(12); New York General
Business Law § 349; New York General Business Law § 350; New York Personal Property Law,
Article 10-A; and 16 CFR § 429.
58. Vivint Solar neither admits nor denies the Attorney General’s findings in
paragraphs 1 – 56.
59. Vivint Solar has cooperated with the Attorney General’s investigation and has
made a number of changes to address some issues of concern to the NYAG.
60. Vivint Solar has agreed to this Assurance for the purpose of resolving this
Investigation and to avoid the time, expense, and distraction of litigation.
61. The NYAG finds the relief and agreements contained in this Assurance
appropriate and in the public interest. THEREFORE, the NYAG is willing to accept this
Assurance pursuant to Executive Law § 63(15), in lieu of commencing a statutory proceeding for
violations of New York Executive Law § 63(12); New York General Business Law § 349; New
York General Business Law § 350; New York Personal Property Law, Article 10-A; and 16 CFR
§ 429.
IT IS HEREBY UNDERSTOOD AND AGREED, by and between the Parties:
RELIEF
62. This Assurance shall apply to Vivint Solar and its officers, directors, servants,
agents, employees, assignees, and any individual, subsidiary, division, parent, affiliate, as well as
any successors-in-interest. The relief set forth below applies to consumers in New York state.
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Prohibited Practices
63. Vivint Solar shall not engage, or attempt to engage, in conduct in violation of any
applicable laws, including but not limited to New York Executive Law § 63(12); New York
General Business Law § 349; New York General Business Law § 350; New York Personal
Property Law, Article 10-A; and 16 CFR § 429, including but not limited to:
a. Misrepresenting the savings consumers will achieve through any solar option
provided by Respondents;
b. Misrepresenting that Vivint Solar's per kWh price for electricity will be lower
than a consumer’s current rates, or that a consumer's monthly electric bill will be
lower after installation of a Vivint solar energy system, savings if such is not the
case;
c. Misrepresenting that a consumer can realize a certain percentage of cost savings
except to the extent such cost savings is reasonably expected based upon a
comparison by Vivint Solar of its electricity prices under the applicable Contract
compared to a consumer's current electricity costs;
d. Failing to clearly and conspicuously disclose that advertised savings are limited to
the finite period of one year and do not reflect savings over the life of a PPA,
Lease, or Purchase;
e. Misrepresenting the actual cost of solar energy under a PPA over the life of the
contract including by indicating that the rate will not increase or that it will not
increase more than a specified amount when there is a set annual, cumulative
price increase for the life of the contract;
f. Misrepresenting the tax benefits available;
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g. Conducting sales presentations or negotiations in a language that is different from
the contract provided to the consumer;
h. Failing to give consumers an opportunity to read and review contracts before
signing the contracts;
i. Inducing consumers to sign contracts by misrepresenting that the document being
signed is paperwork other than the contract itself;
j. Asking or requiring customers to agree to a higher price after they sign a PPA,
Lease or Purchase contract (nothing about this prohibition will prevent Vivint
Solar from reducing the price per kWh for a particular customer after a PPA
contract is signed);
k. Within 90 days of the effective date of this Assurance, entering into a contract for
purchase or lease of solar panels unless and until Vivint Solar has obtained
information about the condition of the roof from the customer and satellite
imagery in order to make a preliminary determination of roof fitness;
l. Forging or otherwise manipulating consumers’ signatures;
m. Within 60 days of the effective date of this Assurance, failing to provide
consumers with hard and electronic copies of the “Notice of Cancellation” after
contracts are countersigned by Vivint Solar;
n. Charging consumers for solar energy at a higher rate than provided for by
contract;
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o. Charging consumers for solar energy when the consumer’s solar energy system is
offline or disconnected or the consumer is not otherwise receiving solar energy,
provided that Vivint Solar may charge a consumer on an estimated basis during
the period of time set forth below in paragraph 64.m;
p. Failing to monitor, operate, and maintain consumers’ solar energy systems;
q. Failing to schedule temporary solar panel removal in a timely manner after
receiving a request for removal.
Affirmative Obligations
64. Vivint Solar shall ensure compliance with relevant New York and federal law,
and Vivint Solar’s own policies and procedures, including without limitation the Ethics
Standards. Vivint Solar will additionally engage in the following practices, to be implemented
no later than 90 days of the effective date of this Assurance:
a. If Vivint Solar provides any representation to a consumer about savings under a
solar contract then Vivint Solar will ensure that i) such representations are based
on savings that average consumers are likely to achieve in the region where the
consumer’s home is located ii) all verbal representations to consumers concerning
savings disclose the basis of all claims and calculations; and iii) all written
representations concerning savings disclose all material assumptions and
estimates used in calculating such savings projection; and iv) where savings are
based in whole or in part on the consumer’s receipt of New York’s Solar Energy
System Equipment Credit income tax credit, disclose the maximum tax credit that
consumers could utilize based upon their anticipated solar expenses and that
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consumers should consult with an accountant or tax professional to understand
their eligibility for the tax credit.
b. Clearly and conspicuously disclose to consumers in sales presentations, marketing
materials, and in their contracts information about the likelihood that it will be
necessary to temporarily remove panels during the 20-year life of the contract,
including the range of potential costs for temporary panel removal and
replacement at each stage during the life of the contract, and a rate chart of costs
within the contract itself.
c. Clearly and conspicuously disclose to consumers in sales presentations and in
their contracts the tax savings/rebates for which they are eligible and provide
copies of the relevant tax forms and instructions. For those consumers with
existing contracts with Vivint Solar, Vivint Solar shall notify consumers via both
US mail and email of their rights to receive New York State tax credits and
provide the relevant tax forms and instructions. Vivint Solar will also establish a
designated hotline to provide information to New York consumers regarding the
New York State tax credit.
d. Provide the Customer Packet as an exhibit to the contract, thereby discontinuing
the practice of providing the Customer Packet separately from the contract and
allowing the consumer the opportunity to review the Customer Packet at the same
time as the rest of the contract.
e. For door-to-door sales, offer for consumers to review a hard copy of the relevant
PPA, Lease, or Purchase contract (provided by the sales representative) before
signing the contract through DocuSign or equivalent.
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f. Require that the PPA, Lease or Purchase contract be signed on a device owned
and controlled by the consumer.
g. Modify the statement required by Personal Property Law § 428(a) that is currently
included in Vivint Solar PPA, Lease and Purchase contracts to describe means
other than delivery of a hard copy of the notice of cancellation form required
under Personal Property Law § 428(b) by which Vivint Solar will accept notice of
cancellation from a customer, such as by email, hand-delivery, or orally on the
telephone.
h. Ensure that contracts provided to consumers through DocuSign or equivalent may
be printed.
i. Review and either reject or countersign PPA, Lease, or Purchase contracts within
2 business days after a consumer signs the contract, and if countersigned, mail a
courtesy copy of each PPA, Lease, or Purchase contract by regular mail to each
consumer within 2 business days of countersignature. If a contract is rejected,
ensure consumer is notified within 2 business days of rejection.
j. Continue existing practice of giving PPA and Lease consumers an extended right
to rescind their PPA and Lease contract, and Purchase customers a right to
terminate their Purchase contract, until work associated with installing a solar
energy system on a consumer’s home begins, and ensure that this right is never
less than five (5) business days from the date that the consumer signed the
contract.
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k. For those consumers with existing contracts with Vivint Solar, Vivint Solar shall
provide the option to receive a hard copy of the consumer’s contracts and
supporting documents free of charge.
l. Provide consumers with a rate chart indicating the cost that the consumer will pay
per kWh for each of 20 years of a PPA contract during the sales presentations and
incorporate the chart into the contract.
m. Reach out to consumers within 2 business days of determining that a consumer’s
solar energy system is not communicating data and/or is not producing energy, to
inform the consumer of the issue and try to resolve it; if the issue cannot be
resolved during the initial communication with the consumer (such as
troubleshooting an internet connectivity issue), further investigate the issue
remotely and, if possible, determine the basis of the issue, and communicate the
determination to the consumer within 5 business days of initial communication;
and address the issue within 5 business days of determining the basis of the issue.
n. Permit consumers who were 70 years of age or older at the time they entered into
a PPA or Lease contract, including their representatives or their estates if a
consumer has died, to cancel their contracts with repayment of all money paid to
Vivint Solar, without penalty, in the event that the consumer was vulnerable at the
time of the sale and the sales representative employed deceptive tactics. The
NYAG shall be the final arbiter of any dispute under this paragraph and of any
appropriate relief.
o. Train Sales Personnel and create guidelines for customer service representatives
performing welcome calls to avoid taking advantage of consumers and prevent its
Page 22 of 37
occurrence and to ensure all consumers, including elderly consumers, understand
the contracts, including the fundamental nature of the contract (e.g. paying for
power under a PPA, leasing equipment under a lease, and buying a system under a
Purchase contract), the price the consumer will pay, the basis for any advertised
savings (including the benefit of New York State income tax credits), the duration
of the contract, and confirmation that Vivint Solar and Sales Personnel are not
affiliated with a utility.
p. Ask consumers who are 70 years of age or older whether they would like to
include anyone else to participate in the sales presentation.
q. Only solicit consumers known to be 70 years of age or older between 9:00 AM
and sunset.
r. Cease a solicitation if at any point during a solicitation, a consumer indicates that
he or she is not interested in Vivint Solar’s products and services, and designate
consumers who have previously indicated that they are not interested in Vivint
Solar’s products and services as “Do Not Contact” in the Company’s CRM.
s. Clearly disclose as part of every sales presentation the duration of contract being
offered to a consumer.
t. Verify that email addresses listed for consumers belong to them and are functional
by sending a confirmation email to the consumer and including dual
authentication protocol.
u. Perform “welcome calls” (or any similar communication with consumers) outside
of the presence of Sales Personnel, and during the welcome calls i) require that
consumers provide their name, address, and phone number, rather than providing
Page 23 of 37
consumers with the information for verification (similar to Vivint Solar’s current
practice with respect to customer’s email address, which Vivint Solar shall
continue); ii) confirm that consumers have received copies of the contract and all
relevant documents; iii) ask consumers whether representations of savings were
made by Sales Personnel, and if so, what representations were made; iv) correct
any misrepresentations by providing accurate information; v) ask consumers
about whether they have any concerns with the contract itself or the decision to
enter into a 20-year agreement with Vivint Solar; and vi) provide consumers with
the opportunity to ask any questions that they may have. Vivint Solar shall give
consumers the option to cancel the contract during the welcome call.
v. Train customer service representatives performing welcome calls to identify signs
of consumer confusion or deception or unfair treatment, such as described in this
Assurance, and institute appropriate remedial measures, including cancelling the
account and taking appropriate disciplinary action against Sales Personnel that
have engaged in deceptive or unfair treatment of consumers.
w. When consumers complain to Vivint Solar about damage, Vivint Solar shall use
best efforts to resolve and repair any damage, at Vivint Solar’s expense, and if
there is a dispute, then Vivint Solar shall use independent third-party contractors
to evaluate alleged damage, Vivint Solar’s responsibility for the damage, and the
cost of repairing the damage, at Vivint Solar’s expense. Vivint Solar shall
provide evidence of these contractors’ independence from Vivint Solar as set
forth below in paragraph 73.e.
Page 24 of 37
x. Where the independent contractor determines that Vivint Solar is responsible for
damage, or if Vivint Solar accepts responsibility, Vivint Solar will cover the cost
of repair and the cost of temporary removal and replacement of solar panels.
y. Temporarily remove solar panels to facilitate necessary roof repair within 3
business days in the event that emergency repairs are needed, for both current and
future consumers.
z. Revise customer service protocol including by doing the following:
i. Ensure that customer service phone number – 877.404. 4129 – has
sufficient staff to timely handle reasonably anticipated call volume such
that expected hold times will generally not exceed fifteen (15) minutes
except in unusual or unforeseen circumstances.
ii. Record all calls between customer service representatives and consumers
for subsequent audit and conduct additional review in the event that there
is a problem or complaint raised by a customer, and inform customers that
recordings of such calls are available upon request.
iii. Provide accurate hold times for consumers and give the option for the
consumer to receive a call back without losing his or her position in line
rather than waiting on hold.
iv. Require customer service representatives to record in a customer contact
log information about the call such that subsequent representatives can
continue to service the consumer’s needs in an efficient manner.
v. Require that follow up communications to consumers occur on or before
the date represented to the consumer, which shall not be longer than two
Page 25 of 37
business days from the date of the prior communication. For every day
beyond that timeframe, the consumer shall receive a credit equivalent to
1/30th of the amount billed to that consumer during the prior month, but
no less than $5.00, on his or her bill during each of those days.
vi. Require that customer service representatives review consumers’ files
before returning calls in order to be prepared to address consumers’ issues.
vii. Provide designated customer service representatives to respond to
technical issues or complaints.
viii. Provide designated customer service representatives to respond to
complaints about customer service.
65. Within 90 days of the effective date of this Assurance, Vivint Solar shall modify
its contracts as appropriate to conform to its obligations under this Assurance.
66. Respondents shall conduct regular internal reviews to ensure compliance with this
Assurance and Vivint Solar’s own policies and procedures and will take appropriate action if it
identifies violations of this Assurance or Vivint Solar’s own policies and procedures, including
taking disciplinary action against personnel and providing appropriate remediation for
consumers, such as cancellation of contracts and reimbursements of payments. Such internal
reviews include performing quarterly audits of the following, as well as subsequent investigation
as outlined below:
a. The representations made to consumers by Sales Personnel by reviewing a
random sample of at least 10% of available information about sales presentations
(e.g., information about when Sales Personnel identified and prescreened a
consumer, first contacted and spoke with a consumer, whether certain information
Page 26 of 37
was presented to a consumer, when a consumer reviewed and signed certain
documents, and the recorded welcome call) and through follow-up
communications with the corresponding consumers by an audit team regarding
the content of sales presentations. In the event that a random sample audit
indicates activity by Sales Personnel that is not in compliance with this Assurance
or Vivint Solar’s own policies and procedures, Vivint Solar shall further
investigate a random sample of 10% any identified Sales Personnel’s contracted
consumers. If the subsequent investigation indicates additional instances of
noncompliant activity, Vivint shall expand its investigation to include an
investigation of all contracted consumers for that Sales Personnel.
b. Consumers’ customer service experiences by reviewing a random sample of at
least 10% of customer accounts to ensure compliance with the provisions set forth
in paragraph 64.z., including that hold times are accurate and that consumers
receive prompt responses from customer service representatives, as well as
ensuring that customer service representatives respond substantively and
appropriately to consumer complaints. In the event that a random sample audit
indicates activity by a customer service representative that is not in compliance,
Vivint Solar shall further investigate a random sample of 10% consumer
interactions with the identified customer service representative. If the subsequent
investigation indicates additional instances of noncompliance, Vivint shall expand
its investigation to include all of consumer interactions with that customer service
representative.
Page 27 of 37
c. Welcome calls by reviewing at least 10% of calls in order to ensure compliance
with Vivint’s own policies and procedures, including the obligations outlined in
paragraph 64.u. In the event that a random sample audit indicates that a
representative performing welcome calls has not sufficiently perform his or her
duties, Vivint Solar shall further investigate a random sample of 10% of that
representative’s welcome call recordings. If the subsequent investigation
indicates additional instances where a representative has not sufficiently
performed his or her duties, Vivint Solar shall further investigate all of that
representative’s welcome calls. If the review of any welcome call indicates
activity by Sales Personnel that is not in compliance with this Assurance or Vivint
Solar’s own policies and procedures, Vivint Solar shall follow the procedure for
further investigation in (a), above.
Consumer Redress
67. Consumers shall be eligible to receive a refund of all amounts paid to Vivint Solar
and to cancel their contract prospectively (which includes removing the system and restoring the
consumer’s roof to a good and watertight condition) if one or more of the following
circumstances occurred:
i. The consumer did not sign the contract with Vivint Solar, the consumer’s
signature was forged, or the consumer’s electronic signature was copied from
another place to the contract.
ii. The sales presentation was in a language different from the language of the
contract and supporting documents.
Page 28 of 37
iii. For electronic contracts, an email address other than an address provided by the
consumer was used on the consumer’s account.
iv. The consumer was induced into signing a contract with Vivint Solar by Sales
Personnel who misrepresented the nature of the contract, or otherwise acted in a
deceptive or fraudulent manner.
68. Where consumers allege that Vivint Solar damaged their property during
installation of solar panels, Vivint Solar shall: (i) use best efforts to resolve and repair the
damage, at Vivint Solar’s expense, including removing the system and restoring the consumer’s
roof to a good and watertight condition (where necessary) and (ii) if there is a dispute, then
Vivint Solar shall engage an independent third party contractor to evaluate the alleged damage,
Vivint Solar’s responsibility for the damage and the cost of repairing the damage, at Vivint
Solar’s expense. In the event that Vivint Solar caused or partially caused the damage, then
Vivint Solar will cover the cost of temporary removal and replacement of the solar energy
system, and the cost of repairing the damage. Vivint Solar shall provide evidence of these
contractors’ independence from Vivint Solar as set forth below in paragraph 73.e.
69. Within 30 days of the effective date of this Assurance, Vivint Solar shall provide
written notice and claim forms in a form approved by the NYAG to all of its customers in New
York with a contract with Vivint Solar notifying them of this Assurance and the grounds for
consumer redress set forth in paragraphs 67 and 68. Claim forms must be submitted within six
months of the date of such notice.
70. Within 30 days of receiving a consumer’s completed claim form demonstrating
the consumer’s eligibility under paragraph 67, Vivint Solar shall provide a refund and cancel the
consumer’s contract. Within eight months of the date of the notice in paragraph 69, Vivint Solar
Page 29 of 37
shall provide a summary of all received claim forms along with outcomes, as well as copies of
the claim forms themselves. The NYAG shall be the final arbiter of any dispute as to the
consumer’s eligibility under paragraph 67. In the event that Vivint Solar discovers, whether
through the audit process or otherwise, instances where the circumstances enumerated in
paragraph 67 occurred, Vivint Solar shall provide redress consistent with paragraph 67.
71. Within 60 days of receiving a consumer’s completed claim form alleging that that
Vivint Solar damaged the consumer’s property during the installation of solar panels pursuant to
paragraph 68, the Contractor shall make its assessment concerning Vivint Solar’s liability for the
damage. Vivint Solar shall timely pay the cost of removal, replacement, and repair, as
appropriate. Within nine months of the date of the notice in paragraph 69, Vivint Solar shall
provide a summary of all received claim forms along with outcomes, as well as copies of the
claim forms themselves. The NYAG shall be the final arbiter of any dispute as to Vivint Solar’s
liability under paragraph 68.
72. Where subsequent to the signing of a contract, Sales Personnel have increased a
consumer’s cost of energy above the rate on the initial contract, Vivint Solar shall provide such a
consumer with an amended contract with a new rate that is lower than the initial rate by the
amount of the difference between the initial rate and the subsequent increased rate, and provide
the consumer with credits to adjust the rate for the energy that the consumer has already paid to
the new rate.
Compliance
73. At twelve (12) months from the effective date of this Assurance, and ever twelve
(12) months thereafter, for a period of five (5) years, Respondents shall file with the NYAG a
report, under penalty of perjury, setting forth in detail the manner and form in which it has
Page 30 of 37
complied with this Assurance (a “Compliance Report”). This Compliance Report shall be signed
by Vivint Solar’s Chief Legal Officer. The Compliance Report shall contain, but not be limited
to, the following:
a. all current versions of training materials, policies, and guidelines for Sales
Personnel or customer service representatives, indicating any changes from
previous training materials, policies and guidelines;
b. all new advertisements or marketing materials, whether electronic or print,
including the content of Vivint Solar’s website;
c. substantiation and analyses to support all advertised claims or approved claims
made by sales representatives regarding consumer savings;
d. summaries of each complaint from a New York consumer as well as steps taken
to investigate, address, and resolve the complaint. “Complaint” means what it is
understood to mean in common parlance, and includes any dispute, claim of
wrongdoing, expression of dissatisfaction, or request for relief relating to any
alleged harm or failure with respect to a New York consumer;
e. copies of independent contractor agreements for third party contractors;
f. a description of any disciplinary or remedial actions taken with respect to any
New York Sales Personnel or customer service representative for violation of the
provisions set forth in this Assurance and Vivint Solar’s policies and procedures
associated with interactions with consumers; and
Page 31 of 37
g. a description of any remediation for consumers or other action taken based upon
Vivint Solar’s identification of violations of this Assurance, including violations
of the Prohibited Practices and Affirmative obligations set forth in paragraphs 63
– 66, the identification of violations of its own relevant policies and procedures,
and/or the circumstances enumerated in paragraph 67.
Penalties, Costs, and Restitution resulting from the Investigation
74. In consideration of the making and execution of this Assurance, Respondents
shall pay to the State of New York $1.95 million dollars in penalties, costs, and restitution.
Payment shall be made as follows: $1 million dollars on or before January 15, 2020, $475,000 on
or before three (3) months from the effective date of this Assurance, and a final payment of
$475,000 on or before six (6) months from the effective date of this Assurance. Restitution shall
be distributed by the NYAG in a manner determined by the NYAG to be appropriate.
75. Payments shall be made by wire transfer, ACH transfer, attorney check, corporate
or certified check, or bank draft, which shall be made payable to the “State of New York”, and
shall reference Assurance No. 19-161; payments shall be addressed to the attention of Jason L.
Meizlish, Assistant Attorney General, State of New York, Office of the Attorney General,
Bureau of Consumer Frauds and Protection, 28 Liberty St., New York, NY 10005.
MISCELLANEOUS
76. The NYAG has agreed to the terms of this Assurance based on, among other
things, the representations made to the NYAG by the Respondents and their counsel and the
NYAG’s own factual investigation as set forth in Findings, paragraphs 1 – 56 above. The
Respondents represent and warrant that neither they nor their counsel have made any material
representations to the NYAG that are inaccurate or misleading. If any material representations
Page 32 of 37
by Respondents or their counsel are later found to be inaccurate or misleading, this Assurance is
voidable by the NYAG in its sole discretion.
77. If the Assurance is violated, voided, or breached, Respondents agree that any
statute of limitations or other time-related defenses applicable to the subject of the Assurance and
any claims arising from or relating thereto are tolled from and after the date of this Assurance.
In the event the Assurance is violated, voided, or breached, Respondents expressly agree and
acknowledge that this Assurance shall in no way bar or otherwise preclude the NYAG from
commencing, conducting, or prosecuting any investigation, action, or proceeding, however
denominated, related to the Assurance, against Respondents, or from using in any way any
statements, documents or other materials produced or provided by Respondents prior to or after
the date of this Assurance. Any action or proceeding must be adjudicated by the courts of the
State of New York, and Respondents irrevocably and unconditionally waives any objection
based upon personal jurisdiction, inconvenient forum, or venue.
78. In the event that the Assurance is violated, voided, or breached, Vivint Solar shall
be entitled to notice of and the opportunity to cure the alleged violation on one occasion, as
follows. The NYAG will notify Vivint Solar of the alleged violation prior to taking any legal
action, and Vivint Solar shall have thirty (30) days (“Cure Period”) to cure the violation and
provide the NYAG with a detailed written explanation of the corrective actions taken. Vivint
Solar shall not, however, be entitled to notice and an opportunity to cure an alleged violation on
more than one occasion or if the NYAG determines in good faith that a threat to the health,
safety, or welfare of the public requires immediate action. In the event of a violation that Vivint
Solar has not cured within the Cure Period or that Vivint Solar is not entitled to the opportunity
to cure, NYAG reserves the right to take any action it deems appropriate.
Page 33 of 37
79. No representation, inducement, promise, understanding, condition, or warranty
not set forth in this Assurance has been made to or relied upon by the Respondents in agreeing to
this Assurance.
80. Respondents represent and warrant, through the signatures below, that the terms
and conditions of this Assurance are duly approved, and execution of this Assurance is duly
authorized. Respondents shall not take any action or make any statement denying, directly or
indirectly, the propriety of this Assurance, or expressing the view that this Assurance is without
factual basis. Nothing in this paragraph affects Respondents’ (i) testimonial obligations or (ii)
right to take legal or factual positions in defense of litigation or other legal proceedings to which
the NYAG is not a party. This Assurance should not be construed as an admission of liability by
Respondents.
81. This Assurance may not be amended except by an instrument in writing signed on
behalf of the Parties to this Assurance.
82. This Assurance shall be binding on and inure to the benefit of the parties to this
Assurance and their respective successors and assigns, provided that no party, other than the
NYAG, may assign, delegate, or otherwise transfer any of its rights or obligations under this
Assurance without the prior written consent of the NYAG.
83. It is understood and agreed that this Assurance shall apply to Respondents,
whether acting through their respective directors, officers, employees, representatives, agents,
assigns, successors, affiliates, subsidiaries, or other business persons or business entities whose
acts, practices, policies are directed, formulated, or controlled by Respondents.
84. Nothing in this Assurance shall relieve Respondents of other obligations imposed
by any applicable state or federal law or regulation or other applicable law.
Page 34 of 37
85. In the event that any one or more of the provisions contained in this Assurance
shall for any reason be held to be invalid, illegal, or unenforceable in any respect, in the sole
discretion of the NYAG, such invalidity, illegality, or unenforceability shall not affect any other
provision of this Assurance.
86. The Parties agree that nothing in this Assurance shall create any private rights,
causes of action, third party rights or remedies of any other individual entity against Respondents
or any of their affiliates.
87. To the extent not already provided under this Assurance, Respondents shall, upon
request by the NYAG, provide all documentation and information necessary for the NYAG to
verify compliance with this Assurance.
88. All notices, reports, requests, and other communications pursuant to this
Assurance must reference Assurance No. 19-161, and shall be in writing and shall be directed as
follows:
If to the Respondents, to: Steven D. Burt ([email protected]), or in his
absence, to the person holding the title of Chief Legal Officer.
If to the NYAG, to:
Office of the Attorney General of the State of New York
Bureau of Consumer Frauds and Protection
28 Liberty Street, 20th Floor
New York, NY 10005
Attn: Jason L. Meizlish, Assistant Attorney General
or in his absence, to the person holding the title of Bureau Chief, Bureau of Consumer Frauds
and Protection.
Page 35 of 37
89. Acceptance of this Assurance by the NYAG is not an approval or endorsement by
NYAG of any of Respondents’ policies practices or procedures, and the Respondents shall make
no representation to the contrary.
90. Pursuant to Executive Law § 63(15), evidence of a violation of this Assurance
shall constitute prima facie proof of violation of the applicable law in any action or proceeding
thereafter commenced by the NYAG against Respondents.
91. If a court of competent jurisdiction determines that the Respondents have violated
this Assurance, Respondents shall pay to the NYAG the reasonable cost, if any, of obtaining
such determination and of enforcing this Assurance, including without limitation legal fees,
expenses, and court costs. Any failure by the NYAG to insist upon the strict performance by
Respondents of any of the provisions of this Assurance shall not be deemed a waiver of any of
the provisions hereof, and the NYAG, notwithstanding that failure, shall have the right thereafter
to insist upon the strict performance of any and all of the provisions of this Assurance to be
performed by the Respondents.
92. Nothing contained herein shall be construed to limit the remedies available to the
NYAG in the event that the Respondents violate the Assurance after its effective date.
93. This Assurance shall be governed by the laws of the State of New York without
regard to any conflict of laws principles.
94. Nothing contained herein shall be construed as to deprive any person of any
private right under the law.
95. This Assurance is not intended for use by any third party in any other proceeding.
96. Respondents acknowledge that they have entered this Assurance freely and
voluntarily and upon due deliberation with the advice of counsel.
97. The Assurance and all its terms shall be construed as
if
mutually drafted with no
presumption
of
any type against any party that may be found to have been the drafter.
98. This Assurance may be executed in multiple counterparts
by
the parties hereto.
All counterparts so executed shall constitute one agreement binding upon all parties,
notwithstanding that all parties are not signatories to the original or the same counterpart. Each
counterpart shall be deemed an original to this Assurance, all
of
which shall constitute one
agreement to be valid as
of
the effective date
of
this Assurance.
For
purposes
of
this Assurance,
copies
of
signatures shall be treated the same as originals. Documents executed, scanned and
transmitted electronically and electronic signatures shall
be
deemed original signatures for
purposes
of
this Assurance and all matters related thereto, with such scanned and electronic
signatures-having the same legal effect as original signatures.
99.
The effective date
of
this Assurance shall be JartMU':l-
f.e.
(}. () :2
c)
-~--o--------,jt-------
LETITIA JAMES
Attorney General
of
the State
ofNew
York
28 Liberty Street ·
New
York,
NY
10005
By:
By:
ureau
Chief
Bureau
of
Consumer Frauds and Protection
212-416-8727
·~zlish
Assistant Attorney General
Bureau
of
Consumer Frauds and Protection
212-416;.8455
Page36
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