Renewable energy co. files multi- million dollar claim against ASPA

Pago Pago, AMERICAN SAMOA — Christian Thunken and American Samoa Renewable Energy and Mobility, LLC have filed a notice of claim to the tune of close to $10 million against the American Samoa Power Authority, over “unwarranted, irresponsible, and defamatory attacks” concerning a wind power project.

The notice was sent by way of email to Attorney General Fainu’ulelei Falefatu Ala’ilima-Utu, by Louise K.Y. Ing of Dentons representing Green Globe Solutions American Samoa. Dentons is the largest multinational law firm in the world, according to Wikipedia.

 “We represent Christian Thunken and American Samoa Renewable Energy and Mobility, LLC (ASREM), the assignee and successor in interest to Green Globe Solutions American Samoa Inc. (GGSASI).

 “Pursuant to A.S.C.A 43.1205, requiring a claimant to file an administrative claim before filing suit against the government, we hereby assert an administrative claim again the American Samoa Power Authority (ASPA), a semi-autonomous agency of the American Samoa Government, (a) for the series of unwarranted, irresponsible, and defamatory attacks against our client, the CEO of ASPA, made on or about January 2022; (b) for the fraudulent inducement ASPA used in order to convince our client to submit a bid and contract with ASPA for a winder power project: and © for unjust enrichment based upon ASPA’s improper use of our client’s proprietary material.”

According to the notice of claim, dated March 6, 2023 obtained by Samoa News, recognizing that American Samoa pays the highest power rates in the South Pacific, the late Utu Abe Malae requested Mr. Thunken to bring a renewable wind solution to American Samoa around 2016.

 “Mr. Thunken’s company, GGSASI, prepared a project and bid which resulted in a Power Purchase Agreement (PPA) signed between GGSASI and ASPA July 17, 2019.

 “The PPA was signed following a bid proposal in which GGSASI submitted nearly 600 pages of proprietary designs for a wind power project to be stationed in A’asu.

 “GGSASI’s performance under this contract was subject to certain condition’s precedent, all of which required GGSASI to obtain financing.

“This was understood by all parties at the time the PPA was signed. GGSASI relied on ASPA’S statements regarding the power needed and in presentations to potential investors. 

 “In the furtherance of the agreement, GGSASI expended considerable sums towards implementing the project. GGSASI delivered detailed plans and studies to ASPA for developing a 42MW/40MWh BESS, $100 million wind project at the time. They installed a meteorological tower that GGSASI erected in May 2019 that collected and provided to ASPA wind data at the site for over three years.

 “They even had a groundbreaking ceremony in October 2019 attended by the current Governor Lemanu.

 “They incurred significant development and groundbreaking costs, and the initial work in developing the design and concept at ASPA’s request. These are major milestones which in any development project are indicative of a significant expenditure of money, time, and resources.”

According to the claim, Mr. Thunken had GGSASI invested great effort into scouting around the globe for financing but found it nearly impossible to secure.

 “ASPA’s CEO, Wallon Fong, blamed GGSASI for its failures to find financing and forced them to assign the PPA to a Texas based company called Raykon on November 7, 2019. When Raykon also failed to secure financing, Mr. Thunken helped find another party, Nippon Koei, to take on the PPA. This was formalized in an agreement on November 23, 2021, attached as Exhibit B. 

 “ASPA later tried to move the project to an unsuitable site, away from the vetted A’asu site to west of Aoloau. 

 “To date, the project has failed to progress, costing American Samoa millions of dollars per year in lost fuel-savings and carbon credits, in addition to burdening American Samoa energy customers with the highest UDS $/KWh end-user rates in the Pacific.

 “It was subsequently discovered that ASPA, Mr. Fong, and ASPA’S Chair, Fonoti Perelini withheld vital information from GGSASI regarding the wind project that directly impacted GGSASI’s ability to find investors.”

They give as an example: ASPA encouraged two renewable projects to enter the marketplace in 2018 and 2019, seeking funding for a combined 62MW of power, despite a trend of sinking island energy demand to about 20- 22MW since 2019.

 “The second project award in question besides the Wind Project was a 20MW Solar PV project that was quietly awarded before the Wind Project in 2018.

 “In addition, a small waste to energy project worth about $31 million was awarded to Peter Gurr and his ‘Maritech Solutions’ group worth about USD $31 million. 

 “During the procurement process to solicit the Wind Project, ASPA should have divulged technical aspects of the other renewable energy projects, including their specific nameplate capacity, details of battery storage, (e.g. whether storage was only “smoothing” solar output vs supporting grid stability) and importantly, location on the ASPA grid.

 “Such components significantly affect the cost of the battery storage system that would feed power in the same grid as the Wind Project and also affect proper grid and financial modeling.

 “These are basic engineering and procurement ground rules which ASPA failed to follow, and which would have provided vital information for bidders as well as investors.”

Furthermore the claim alleges that it was also discovered that ASPA gave GGSASI’s proprietary project development plans to Tutuila Wind Energy LLC (TWE LLC), an American Samoan limited liability company with participants of NIPPON/ KOEI, as demonstrated by TWE LLC’s one-for-one identical concept and design.

 “A review of TWE’s site schematic reveals ten turbines at the same capacity as GGSASI’s plans, aside from battery plant, with roads and T&D (transmission and distribution) extended due to different sites under consideration. 

 “American Samoa lawmakers, concerned that ASPA failed to provide them information about the ongoing wind projects, requested that Mr. Thunken provides an update and analysis of the ASPA wind project and general progress. He met with lawmakers on January 24, 2022, and at their request provided an analytical review of the progress the following day.

 “One lawmaker shared the review with Mr. Fong. Furious at the negative (but true) light in which ASPA’s efforts were portrayed, Mr. Fong lashed out. Rather than respond to the review on the merits, Mr. Fong attacked Mr. Thunken personally.

 “On January 26, at 3:44 A.M., Mr. Fong sent out a derogatory email in which he claimed Mr. Thunken was a “conman with no money, spreading false information to try and land a contract or job for himself”, and of wanting “a role with the new independent power producer (IPP)” but “he doesn’t know squat.”

LEGAL CLAIM

The claims cited that Mr Fong, on behalf of ASPA, sent out a defamatory email to an individual without a formal request from the Fono as part of the legislative process, so it does not qualify for immunity under ASCA 43.5202(2).

 “Second, his accusations were not mere hyperbole, stated as opinions or in the contest of a substantive debate.

 “Mr. Fong made specific false statements of fact: (1) “con man”; (2) “has no money”; (3) lying in order to (4) land a contract or job and (5) knowing nothing.

 “Mr. Fong had no basis for knowing or saying any of these things, yet intentionally made these allegations solely for the purpose of harming Mr. Thunken.

 “Such words suggest intention and malice which would disqualify any conditional privileges under American Samoa law and that “con man” is a very specific allegation.

 “It essentially alleges the American Samoan crime of Criminal Fraud outlined in ASCA 46.4129, which is a crime of moral turpitude and punishable by confinement.

 “As such, it is libel per se, and actual damages do not need to be proven. Mr. Fong’s attacks on Mr. Thunken have harmed his reputation as an individual, and as a professional, making it more difficult for him to obtain future contracts and do business with the American Samoa Government.

 “Specifically, Mr. Fong’s statements have served to blackball Mr. Thunken and his company from government contracts. For example, AREM has provided.”

Regarding the proposals for RFP-019-2022 (local tramway),RFP-20-2022 (Lions Park Master Plan), a small hospital to LBJ, and a stand alone quarantine multiplex for the Department of Health.

 “Since Mr.Fong's statements Mr.Thunken and his companies have been unable to get even basic response[s] from repeated inquiries into these projects and bids.

 “Due to the cost of submitting proposals, they have had to suspend operations with the American Samoa Government so long as Mr. Fong remains with ASPA.”

Furthermore the plaintiffs claim that while GGSASI prepared its bids, signed the PPA, ASPA, however, withheld vital information that would have substantially impacted the design, bid and ultimate success of the wind project.

 “By withholding information regarding other renewable energy projects in the territory, it put GGSASI at a disadvantage, both in seeking to build a larger project (which required more financing) and selling American Samoa as a place to invest.

 “Also, during a hearing on February 3, 2022, Fong told lawmakers that ‘prior to 2019 no investor would ever come to American Samoa’, given the negative financial standing of ASPA and the American Samoa Government's junk bond credit rating by Moody's.

 “This admissions is evidence that GGSASI and Mr. Thunken were lured under false pretenses into providing significant value, knowledge and know how to ASPA, while ASPA leadership under Mr.Fong and Mr. Perelini knew full well and did not disclose that financing would be impossible to obtain.

 “ASPA's omissions constituted fraud in the inducement which negated the ‘meeting of the minds’ required for GGSASI to assign the PPA.

“As such ASPA is liable for the costs incurred by GGSASI in performing its end of the PPA and the assignment should be voided.”

The final claim states that after pushing GGSASI out of the PPA, ASPA continued to use GGSASI's wind data without compensation, apparently gave giving GGSASI's wind data and proprietary design to TWE LLC, as evidenced by their identical design specifications.

 “During the February 3, 2022, Fono hearing, (former) Rep. Andra Samoa asked Mr.Fong three times about the origin of TWE LLC's designs.

 “Three times, Mr. Fong deflected the questions, knowing that they originated with GGSASI.

“ASPA has received unjust enrichment of proprietary intellectual property as a result of its activities without paying just compensation to our clients.”

The plaintiffs are asking ASPA to compensate Mr. Thunken $500,000 for defamation based on the value of lost profits of bid proposals and lost opportunity to work with the American Samoa Government; Compensate ASREM for past development work on the wind project in the amount of $1.2 million plus interest; compensate ASREM $8 million for the lost income value for the PPA.”

Also if the TWE LLC proceeds with the wind project, provide ASREM a 2% equity interest in the project for the PPA term.

“If TWE LLC does not proceed with the Wind project, provide to ASREM a right of first refusal to be assigned the PPA.

“ASREM has potential investors ready, along with 3.8 years of continuously collected wind data to February 2023 at the contracted A'asu site and can pick up where it left off.”

Samoa News reached out to the AG and ASPA CEO for comments via email, but no reply was received at press time.