After a wake of headlines quick to paint Tesla Energy as an irresponsible solar power company proliferated, it appears there’s more to the story of Walmart’s lawsuit against the all-electric car maker, particularly with regard to Tesla’s attempts to resolve the issues involved. A joint statement released this morning indicates the two parties will be working together to resolve their legal disputes amicably; however, after further review of the parties’ case history and Walmart’s conduct throughout, their statement seems to merely reiterate a problem that has been unresolved since the start of the two companies’ problems with one another.
Walmart and Tesla Joint Statement
“Walmart and Tesla look forward to addressing all issues and re-energizing Tesla solar installations at Walmart stores, once all parties are certain that all concerns have been addressed.”
Tesla’s solar installations currently occupy 248 Walmart locations across the United States, and seven have been the subject of roof fires: One each in 2012, 2016, and 2017; three between March and May of 2018; and one in November 2018. Walmart’s lawsuit involving these instances claims serious negligence and makes damning assertions against Tesla, as to be expected by the plaintiff any lawsuit. Their claims against Tesla include, among many things, that millions of damages have resulted from the fires, that their private inspections of the solar systems reveal widespread negligence and shoddy installations, and that Tesla has refused to provide them with a final ‘root cause’ of the fires.
Seven fires are certainly a cause for concern, and Walmart is justified in some of its remediation requests from Tesla as a result: All of the systems were de-energized while inspections were ongoing, for one, and Tesla agreed to pay for the damages resulting from the fires. From Tesla’s own inspections, there were definitely issues with whichever employees – Tesla’s directly or contractors – were in charge of the installations and maintenance which, unfortunately, did not receive the attention they needed until after major events occurred.
However, what’s been left out of the discussion about Walmart’s lawsuit is the role Tesla played throughout the two companies’ ongoing efforts to resolve the issues and Walmart’s lack of willingness to cooperate even after agreeing to certain remediations. Exhibit 249 of the suit, containing a letter from Tesla’s legal counselors to their Walmart counterparts written on July 29, 2019, indicate that even after both Tesla’s and Walmart’s independent inspections of several sites determined their safety and suitability for re-energizing, Walmart still would not agree to return them to service. Instead, Walmart demanded that all of their solar agreements be amended to make Tesla liable for issues that could, for example, be the fault of Walmart’s own negligence or misconduct. If Tesla did not agree to the ‘take it or leave it’ agreement, Walmart would prevent Tesla from re-energizing any of the systems in their previously signed contracts.
Further written in Tesla’s letter was the detailed recount of how ongoing negotiations were continuously stalled by Walmart, how further inspections continued alongside Walmart’s independent inspectors, and how dozens of sites were approved for re-energizing, all without Walmart budging on its position that Tesla accept its terms ‘or else.’ At one point, Tesla wasn’t able to review Walmart’s inspector’s reviews because the company had stopped paying their salary and thus both the inspector and Walmart were ‘unable to release them’ to Tesla. As a final note, although not the final conclusion made in Tesla’s letter, was that at no point did Walmart ask Tesla for a ‘root cause’ of the original fires which prompted the entire issue to begin with. Further, Walmart’s inspectors had provided their final conclusions, though they were not shared with Tesla.
Here are two quotes from the letter expressing Tesla’s frustration with the process:
“My client has had enough. Walmart cannot negotiate (and renegotiate) a protocol for inspection; then try to impose new, extra-contractual conditions on the exercise of Tesla’s contractual rights; then invite negotiation over those improper, unreasonable conditions; and then refuse to negotiate. Walmart has unfortunately wasted time and diverted resources while undermining the goodwill that Tesla had sought to preserve throughout this process.” (p. 8)
“We also disagree with Walmart’s contention that its consultants have ‘confirm[ed] Tesla’s systemic, widespread breaches and negligence.’ The parties’ Agreements anticipate that the systems will require periodic maintenance and repair in a manner that is entirely customary within the solar power industry. The fact that some sites in fact need maintenance and repair – especially sites that have been idle for a year now – is neither surprising nor a breach of any Agreement. The fact that thorough, comprehensive inspections have identified areas for improvement and opportunities for error correction is equally unsurprising. Tesla welcomes the chance to improve its processes, tools, and monitoring, but that too is not evidence of any breach.” (pp. 11-12)
From reviewing both the lawsuit and Tesla’s letter addressing it, it seems that at the core of Walmart’s litigation is the desire to a) break its financial ties with Tesla, which included paying Tesla for the power its solar systems generated; b) recover the damages the fires caused to Walmart’s stores, which Tesla already agreed to; and c) force Tesla to remove all of its solar installations rather than allow for previously agreed to repairs and stringent inspections involving private consultants of Walmart’s choosing.
There are certainly instances where Tesla needed to take action in these cases, and it appears they have and are continually willing to do so under very stringent and expensive conditions. It is hard, though, to see where Walmart’s reaction isn’t overblown considering the risks of anything involving electrical installations or in industry in general. Tesla’s letter cited ten instances of Walmart fires that were completely unrelated to their solar installations to make this point.
Whatever Walmart’s intentions, there is a message forming for any future would-be solar power companies wanting to do business with the enterprise in the future: Beware. If the opportunity to renege on an agreement comes up, no matter how willing the other party is to cooperate, Walmart money and power will decide the new terms no matter what.
Read Tesla’s notice of breach of contract to Walmart below.