UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
UNICAT SERVICES, LLC )
) Civil Action No. 3:16-cv-32
BLOOM ENERGY COMPANY )
) JURY TRIAL DEMANDED
PLAINTIFF’S ORIGINAL COMPLAINT
Plaintiff Unicat Services, LLC files this Original Complaint against Bloom Energy
Company and alleges as follows:
I. THE PARTIES
1. Plaintiff Unicat Services, LLC (“Unicat”) is a Texas limited liability company
established in June 2013 by Brazoria County residents and is located at 5918 South Highway 35,
Alvin, Texas 77511. Unicat was in the business of providing services and products to Bloom
Energy Company—prior to the grievances made the basis of this Complaint.
2. On information and belief Defendant Bloom Energy Company (“Bloom Energy”)
is a California corporation with its principal place of business at 1299 Orleans Drive, Sunnyvale,
California 94089. Bloom Energy manufactures and installs on-site power generators worldwide.
II. JURISDICTION AND VENUE
1. This Court has original subject matter jurisdiction over this matter pursuant to 28
U.S.C. § 1332.
2. Unicat and Bloom Energy are citizens of different states (Texas and California).
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3. The amount in controversy exceeds the sum or value of $75,000, exclusive of
interest and costs.
4. Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391 because a
substantial part of the events or omissions giving rise to Unicat’s claims occurred in Alvin, Texas
(Brazoria County), located within this District and Division.
5. Bloom Energy is subject to personal jurisdiction because Bloom Energy’s improper
conduct alleged herein occurred in, was directed from, and/or emanated from Texas and because
Bloom Energy availed itself of the benefits and protections of the State of Texas’s laws by
establishing sufficient minimum contacts with the State of Texas such that Bloom Energy could
reasonably anticipate being haled into court here.
1. In early 2013 Bloom Energy (including its employee David Sanghera)
communicated with Mani Erfan and Jim McKimmy, two residents of Brazoria County who have
had a career in serving the catalyst and chemical industries. Bloom Energy inquired whether
Messrs. Erfan and McKimmy, through a company they would form, could service fuel cell
canisters as well as provide catalyst and related products to put inside the fuel cell canisters. Bloom
Energy uses the fuel cell canisters in connection with its fuel cell energy generating business.
2. Mr. Sanghera represented that Bloom Energy was in a rush to find such a service
and product supplier as Bloom Energy wanted to transfer the operations of servicing its fuel cell
canisters from Mexico and California to some other location in the United States.
3. Messrs. Erfan and McKimmy assured Bloom Energy that Messrs. Erfan and
McKimmy could form, invest in and get up and running a company whose purpose and mission
would be to exclusively provide the services and products Bloom Energy represented was in urgent
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need, was in substantial demand—and would continue to be a reliable source of substantial
business for Unicat Services for at least three to five years, and likely much longer, in the future.
4. In June 2013 Messrs. McKimmy and Erfan formed Unicat Services for the purpose
of potentially doing business with Bloom Energy.
5. On or around June 4-5, 2013, Bloom Energy committed to Unicat Services that
Bloom Energy was ready to start transitioning the fuel cell canister business from Mexico and
California to Unicat Services, including providing to Unicat Services equipment and goods (in a
bailment or lease-like arrangement) as well as design and training services—all of which Unicat
Services would need to build and staff a long-term servicing facility for Bloom Energy. Obviously,
in return, Unicat Services would have to build and acquire the infrastructure for a servicing facility
as well as the needed personnel and resources to be trained and to perform the fuel cell canister
work. Bloom Energy also wanted reassurances that it could purchase from Unicat Services at least
3,000 kgs/per month of TSR-122E (a low temperature desulfurization catalyst that Bloom Energy
wanted to place in its fuel cell canisters), and more of this and other products for use in the fuel
cell canisters as the business progressed. Exh. A (June 4-5 emails).
6. On or around June 7, 2013 Bloom Energy sent Unicat Services a schematic of the
assembly line servicing facility and warehouse that Bloom Energy wanted Unicat Services to build
by using Bloom Energy equipment transferred from Mexico to Alvin, Texas and by using Bloom
Energy’s on-site design services to aid Unicat Services in building and equipping the facility.
Bloom Energy also sent pictures, for training and illustration purposes, purporting to show how
Unicat Services would unload and clean Bloom Energy’s fuel cell canisters, the pictures apparently
showing the unloading and cleaning work being done in the open parking lot of Bloom Energy’s
California facilities. Exhs. A (emails with pictures) & B (schematic):
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7. On June 17, 2013, Mr. McKimmy indicated Unicat Service’s willingness to start
making capital acquisitions and improvements to build a servicing facility according to Bloom
Energy’s design instructions and in response to Bloom Energy’s urgent request to start a business
relationship—but Mr. McKimmy first wanted Bloom Energy’s approval and agreement—before
Unicat Services started making substantial capital expenditures. Specifically, Mr. McKimmy
asked in writing for approval and confirmation that Bloom Energy was promising to give Unicat
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Services the servicing work for “all fuel cells for Bloom Energy” and a letter of intent outlining
the relationship. Exh. C.
8. By written email response, Mr. Sanghera for Bloom Energy agreed to the terms
being requested by Mr. McKimmy’s prior request, stating: “Please use this message as approval
to proceed.” Exh. C.
9. Mr. Sanghera followed this written approval with a letter of intent specifying that
Unicat Services would be responsible under their agreement to provide the facilities and personnel
(at Unicat Services’ cost) needed to perform the fuel cell canister work (including loading,
unloading, and recycle of canister material contents, etc.) that Bloom Energy would provide Unicat
Services for use in such facilities. Exh. D.
10. Mr. Sanghera further outlined a schedule for implementation and identified a list of
the Bloom Energy equipment that Bloom Energy would provide (in a bailment or lease-like
arrangement) to Unicat Services for installation in its to-be built facilities. Exh. D. Bloom Energy
eventually transferred substantially more equipment as it assisted Unicat Services to design its
facility. Mr. Sanghera further specified other actions the parties were to take under their agreement,
including (a) Unicat Services was to visit Bloom Energy’s operations in Mexico for training and
design instruction for Unicat Services’ to-be-built facilities, (b) Bloom Energy was to come to
Alvin, Texas to assist Unicat Services in the design and construction of the fuel cell servicing
facilities to be built there, (c) Bloom Energy was to transfer its equipment located in Mexico to
Alvin, Texas, and (d) Bloom Energy was to train Unicat Services personnel for the work to be
performed under their contract. Exh. D.
11. As part of that training, Greg Wilson (Mr. Sanghera’s boss at Bloom Energy) came
to Unicat Services’ facility in Alvin, Texas and did a physical audit and provided instructions to
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Mr. McKimmy on the nature of the build-out that Unicat Services would have to immediately
undertake to handle the substantial work to be given Unicat Services under the parties’ agreement,
which both Messrs. Sanghera and Wilson represented would be for the oncoming several years.
12. Relying on Bloom Energy’s promises relating to the scope of the work (all of the
fuel cell canister work) and length of the work (no less than three to five years and likely longer),
Unicat Services made the capital improvements requested by Bloom Energy (including requests
by Messrs. Sanghera and Wilson) at a substantial initial cost and which turned out to be much
larger than what Unicat Services originally estimated, and hired seven employees to be trained and
to operate under the Unicat Services-Bloom Energy contract.
13. These capital improvements—that Bloom Energy knew Unicat Services was
making at Bloom Energy’s request—included substantial concrete, electrical, air conditioning,
office facilities and related work.
14. Further, as requested by Bloom Energy, Unicat Services sent Timothy McKimmy
(son of Mr. Jim McKimmy and subsequent President of Unicat Services) and/or John Kent (Unicat
Services employee and operations manager) to Mexico and to California to observe Bloom
Energy’s processes so that Unicat Services could duplicate them in Alvin, Texas.
15. They saw and Unicat Services was told that Bloom Energy had the contents of the
fuel cell canisters emptied, canisters cleaned, and the extracted contents sent to public landfills for
non-hazardous waste in Mexico and in California. Unicat Services planned on doing the same
operation in Alvin, Texas, except it was also going to recycle what fuel cell contents it could using
Unicat Services’ technology and know-how. Unicat Services ordered a large roll-off box, placed
it near the Unicat Services facility, and planned to fill the roll-off with non-reusable canister
contents—because Bloom Energy had effectively represented in 2013 that all of the canister
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contents was nonhazardous and could be dumped at any public landfill (the process Bloom Energy
told Unicat Services was being done in California and Mexico).
16. As discussions between the parties progressed, the only material term that Unicat
Services was lacking in writing from Bloom Energy was the price that Unicat Services would
charge Bloom Energy for performing the fuel cell canister servicing work (the price for the product
sales would be at reasonable and competitive prices commensurate with the market). On or around
June 20, 2013 Timothy McKimmy sent in writing Unicat Services’ offer on the price for the
servicing work: Unicat Services proposed to charge Bloom Energy $400 per canister serviced,
which charge was to cover salary and labor, facilities rent, equipment, utilities, insurance, all other
overhead and provide Unicat Services its profit margin.
17. On July 3, 2013, Bloom Energy responded in writing to Timothy McKimmy’s
email offer: “after careful deliberation we are going to accept your offer,” Mr. Sanghera stated.
18. Thus, as of July 3, 2013, the parties had a written agreement consisting of the
material terms outlining their relationship as set forth in the written materials found in Exhibits A
through D. Bloom Energy, however, represented that it intended to flesh out a long form agreement
with Unicat Services that would contain all the terms and conditions already agreed to along with
miscellaneous terms usually found in Bloom Energy’s vendor agreements. Mr. Sanghera promised
to send a template for such in the future. Exh. E.
19. While the parties hoped to start full scale operations in Unicat Services’ built
facilities by August 2013, the scale of the investment and renovations and scope of the training
took longer than originally anticipated by either party. It was not until around October 2013 that
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Unicat Services was able to do its first run of fuel cell canister unloading at its newly equipped
20. In the meantime, Messrs. McKimmy, Erfan and Sanghera discussed the terms of a
long-form written agreement. On or around September 6, 2013, Mr. Sanghera transmitted Bloom
Energy’s proposed draft to Mr. McKimmy, which incorporated many of the key terms that had
already been memorialized in the prior writings and other terms that Mr. Sanghera said was
normally included in its vendor agreements.
21. When Mr. McKimmy received the draft, however, he noted that Mr. Sanghera’s
draft limited the term of the agreement to just one year. This was directly contrary to what the
parties had previously agreed to in prior discussions, where Mr. Sanghera represented that the term
would be many years to come and no less than three to five years to start out with (and if those
years were successful, many more years to follow)—indeed, anything less made no business sense
to Unicat Services who was then investing and building (according to the design and training
services being provided by Bloom Energy) at substantial cost to Unicat Services in order to
accommodate Bloom Energy’s immediate business needs and representations of the substantial
business that Unicat Services would enjoy for years to come if Unicat Services made such
22. In fact, this point about duration was important to everyone at Unicat Services—
and particularly to Mr. McKimmy who confronted Mr. Sanghera specifically on it around the time
of Unicat Services’ infrastructure build-out and first operations. At that time, while Mr. Sanghera
was visiting the Alvin, Texas build-out site, Mr. Sanghera threatened to pull the business from
Unicat Services unless Unicat Services followed the myriad instructions being given by Mr.
Sanghera on his visit. Mr. McKimmy was offended that Mr. Sanghera would resort to this threat
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as part of Bloom Energy’s “training”—when Unicat Services had been already spending hundreds
of thousands of dollars complying with Messrs. Sanghera’s and Wilson’s instructions. Mr.
McKimmy was not interested in being manipulated and intimidated by Mr. Sanghera but insisted
on a cooperative, mutually beneficial, long term business relationship where the parties treated
each other with honesty and business decency. Accordingly, Mr. McKimmy told Mr. Sanghera
straight up that if he was going to act “like a jackass” and commence threatening to pull the
business after all this money, time and resources was being expended, then Bloom Energy needed
to get off Unicat Services’ property and immediately leave. Mr. Sanghera retorted that Bloom
Energy was a billion-dollar business, suggesting it could not be intimidated by anything a seven-
person operation could say or do. Mr. McKimmy assured Mr. Sanghera that the entire billion-
dollar business needed to immediately leave the premises if Bloom Energy was not willing to
commit and agree to a long term mutually beneficial relationship because Unicat was not willing
to spend hundreds of thousands of dollars only to have it all thrown away in any relationship cut
short by Mr. Sanghera’s senseless threats. Mr. Sanghera backed off, became reasonable, and
agreed in no uncertain terms to at least a 3-5 year deal, and if things worked well for this initial
term, the contract would extend many more years in the future. He did this to assure Unicat
Services that its investment in the facilities, people and work, all performed according to the
services being provided by Bloom Energy (design and training) was worth the cost as Bloom
Energy would not pull out early.
23. In that light, when Mr. McKimmy received Mr. Sanghera’s draft agreement that
limited the contract to one year, he immediately called Mr. Sanghera and reminded him of their
prior agreement and numerous discussions of an agreement no less than three to five years in length
for an initial term and with a likely term of many years longer if the first term went well. Mr.
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Sanghera apologized for the one-year assertion, which he said was his inadvertent failure to convey
the three to five year term to the contract drafter; Mr. Sanghera told Mr. McKimmy he could
replace the one year number with three years, and which, as discussed, the parties could lengthen.
24. Mr. McKimmy sent back to Mr. Sanghera proposed changes to many of the
miscellaneous, boiler-plate, terms Mr. Sanghera original proposed, but Mr. Sanghera never
responded to Mr. McKimmy’s proposed changes addressing the boiler-plate language found in
Bloom Energy’s vendor contracts, and the parties merely continued to operate under their prior
written agreement (as memorialized in Exhibits A-D) modified by discussions referenced further
below. While Mr. Sanghera represented to at least Mr. Erfan that Bloom Energy would finalize
the long form agreement and sign it, Bloom Energy never did so, the parties merely operating
under the written agreement they already had.
25. Unicat Services performed the first production run in its newly built and retrofitted
facilities around October 2013. As it had been trained by Bloom Energy, Unicat Services planned
on emptying the canister contents into the nearby roll-off box and to transport the same to a public
landfill, as represented had been done in Mexico and California. However, prior to taking the
shipment to a public landfill, Messrs. McKimmy and Erfan, as a matter of professionalism and
best-practices, decided to test the contents—just to be sure that it was safe to take to a public
26. Their tests revealed that the Bloom Energy fuel cell canisters that Bloom Energy
had transported to Unicat Services (and, according to Bloom Energy, had been previously emptied
in Mexico and California and dumped in public landfills) contained an extremely hazardous and
toxic material—benzene, which can cause blood cancers under long exposures, and which is a
material clearly classified as hazardous by federal and state environmental authorities.
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27. All of Unicat Services’ personnel had been around Bloom Energy’s canisters
without protective gear suitable for hazardous material, but fortunately the exposure had been
limited and no employee showed any symptoms of blood poisoning and Unicat Services had not
taken the roll off box to a public landfill. While everyone at Unicat Services was relieved, Messrs.
McKimmy and Erfan immediately contacted Mr. Sanghera and demanded an explanation why
Bloom Energy had represented that the fuel cell canisters contained non-hazardous waste when
the exact opposite was true.
28. Moreover, this new development would impact on Unicat Services’ ability to
recycle the materials into new canisters, as was contemplated in the original discussions and letter
of intent (i.e., Unicat could not recycle the hazardous material under proper procedures and
29. Mr. Sanghera professed complete ignorance about the hazardous material and
assured Unicat Services that Bloom Energy would get the required approvals from government
authorities for Unicat Services to handle hazardous waste and would provide suitable training for
handling hazardous waste.
30. Mr. Erfan told Mr. Sanghera that Unicat Services intended to freeze the operations
until the hazardous waste issue was satisfactorily resolved. Mr. Sanghera literally screamed that
Unicat Services could not stop production because Bloom Energy had ongoing delivery
commitments that had to be satisfied, and freezing the line would mess up Bloom Energy’s
schedules. Unicat Services refused to budge, and Bloom Energy finally relented. Bloom Energy
retained a third party to provide training and proper transport and disposal of the hazardous waste,
and Unicat Services was thus able to continue its operations for Bloom Energy when those things
were in place.
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31. A couple of months later, however, (end of 2013 or beginning of 2014), Mr.
Sanghera called Mr. Erfan and said the $400 per canister price that Unicat Services was charging
was too high, especially since Unicat Services could not recycle the fuel cell contents, as originally
envisioned (because Unicat Services could not (and would not) do so given the highly hazardous
materials in the canisters). Mr. Sanghera told Mr. Erfan that Bloom Energy would have to
terminate the contract unless Unicat Services lowered the price to that demanded by Bloom
Energy: just over $100 per canister.
32. Having already invested in its facilities, hired seven employees, and hoping to avoid
a complete beak down in its operations over Mr. Sanghera’s improper demands (as it was not
Unicat Services’ fault that Bloom Energy had failed to disclose that its canisters contained
hazardous waste – and it was clearly Bloom Energy’s assumed job to train Unicat Services on the
unloading procedures—which a billion dollar company like Bloom Energy should know how to
do), Unicat Services hoped it could work out a compromise with Bloom Energy in a revised
business relationship: Unicat Services would lower the price (since Unicat Services could not do
some of the work as originally contemplated) in return for Bloom Energy’s agreement that it would
buy from Unicat Services all of the catalyst and other materials that went into the freshly loaded
fuel cell canisters. Unicat Services also offered to Bloom Energy technology that would remove
the hazardous waste from the canisters altogether and allow Unicat Services to do the recycling
work as originally it had hoped to do.1
Unicat Services would have thought that an advertised “green” company like Bloom Energy
would have rewarded Unicat Services for bringing to Bloom Energy’s attention the hazardous
waste in Bloom Energy’s fuel cell canisters so that Bloom Energy would not expose the
environment and people to dangerous toxins. Instead of rewarding Unicat Services for flagging
the benzene to Bloom Energy, Bloom Energy used this as a renegotiating hammer to lower the per
canister price that Unicat Services could charge (since Unicat Services could not perform the
recycle services that it originally thought it could when it did not know Bloom Energy’s canisters
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33. Bloom Energy declined the latter offer, but accepted Unicat’s agreement to reduce
the price in return for Bloom Energy’s commitment to purchase from Unicat Services all of the
products that go into the canisters at commercially reasonable terms, but told Unicat Services it
would have to phase that process in (since it would need to transition from other vendors of such
products). Bloom Energy likewise reaffirmed its commitment to a long term business relationship
with Unicat Services.
34. Unicat Services knew that it could not recoup its investment and make the profit
anticipated from the canister loading/unloading business at the reduced price of service demanded
by Bloom Energy, but Unicat Services could make up the difference and achieve its profitability
targets through the product-sales business that would accompany the canister servicing business.
Bloom Energy’s agreement to this compromise encouraged Unicat Services to go forward.
35. The parties began doing substantial canister servicing business throughout 2014 at
the reduced prices. Bloom Energy also purchased from Unicat Services some of the product
necessary for the fuel cell canisters and told Unicat Catalyst that Bloom Energy would shortly be
purchasing the rest of the necessary products as promised. Unicat Services waited for this promise
to fully materialize and kept inquiring to Bloom Energy.
36. For some reason, in 2014 Mr. Sanghera disappeared as Bloom Energy’s contact
with Unicat Services; nobody at Bloom Energy would say where he went, other than to say “he
moved on” (unclear what that meant). After Mr. Sanghera’s departure, Mr. Wilson acknowledged
to Unicat Services that Bloom Energy had made many promises to Unicat Services through Mr.
were toxic). Bloom Energy’s compromise to reduce the per canister price in return to give Unicat
sales of all materials in the canister was an acceptable compromise to Unicat Services—but for,
on information and belief, Bloom Energy’s fraudulent intent not to honor this compromise.
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Sanghera that Bloom Energy had not honored yet, but he reassured Unicat Services that Bloom
Energy would honor all the promises.
37. In 2015, however, Unicat Services noticed that Bloom Energy was dramatically
dropping the number of fuel cell canisters needing serviced. Unicat Services repeatedly asked
Bloom Energy for an explanation on the reduced volumes. Bloom Energy intimated that its needs
were presently less but never disclosed that Bloom Energy had any intent to redirect the fuel cell
business anywhere else or to terminate the business with Unicat Services unilaterally. Unicat
Services also kept demanding that Bloom Energy start purchasing all of the canister contents from
Unicat Services, per their agreement (as Unicat Services had already relied on that agreement, had
dropped its prices, and needed to make up the deficit with product sales).
38. In addition, Bloom Energy never provided notice to Unicat Services at any time of
any deficiency in the quality of service Unicat Services was providing or in the quality of the
products that Unicat Services had sold to Bloom Energy.
39. If anything, Bloom Energy told Unicat Services in myriad of ways just the opposite.
For example, in 2014 Bloom Energy told Unicat Services that it needed to ramp up its capacity to
service more fuel cell canisters because Bloom Energy was going to provide even greater volumes
of business to Unicat Services. To respond to this promised increase of business, Unicat Services,
in reliance thereon, started to build additional facilities to expand its capacity to match what Bloom
Energy was demanding. Bloom Energy knew of these expansion plans and of Unicat Services’
commencement of them.
40. In the summer of 2015, however, during the middle of these expansion efforts, at a
cost of another substantial sum to Unicat Services, Bloom Energy unilaterally, and without
warning, terminated the business altogether.
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41. On information and belief, Bloom Energy had been secretly building its own
canister servicing facility elsewhere (or setting up some other vendor to do that work) and was
using Unicat Services as an interim place to have the work done until that facility/vendor
relationship was completed. In 2015, on information and belief, this undisclosed source apparently
became finished, and Bloom Energy terminated the business with Unicat Services and redirected
the fuel cell servicing business elsewhere.
42. In July 2015, Bloom Energy came to Alvin, Texas to “decommission” the Unicat
Services facility, i.e., to remove all of Bloom Energy’s bailed/leased equipment that had been
installed in Unicat Services’ facility; Bloom Energy left—leaving behind the Unicat Services
personnel to swallow the investments made and commitments to Unicat Services’ employees and
43. To add insult to injury, Bloom Energy also broke its promise to pay for $51,928.73
in inventory associated with Bloom Energy’s unilateral breach of its agreements to do business
with Unicat Services.
44. Specifically, from the very beginning of the relationship, Bloom Energy provided
some consumable supplies to Unicat Services that Unicat Services would use and need to
continuously replace during their servicing work for Bloom Energy (as opposed to the fixed assets
and equipment that Bloom Energy had transferred from Mexico to Alvin, Texas, and which Bloom
Energy had come to recover again during the decommissioning of Unicat Services’ facilities).
These consumable supplies consisted of nuts, bolts, gaskets, crating materials, tooling, stainless
steel mesh, vibratite, etc.
45. At some point in 2014, however, Bloom Energy told Unicat Services that Bloom
Energy would no longer supply these consumable materials directly. Instead, Bloom Energy was
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authorizing Unicat Services to purchase these consumable supplies itself from other vendors and
then to bill Bloom Energy for these items as they were used on Bloom Energy fuel cell canisters.
The parties operated under this revised procedure successfully…until Bloom Energy unilaterally
terminated the business relationship.
46. When Bloom Energy unilaterally terminated the relationship, Unicat Services had
$51,928.73 of this consumable inventory for which it needed reimbursed from Bloom Energy.
47. Bloom Energy knows that this consumable inventory was a debt it assumed when
Unicat Services originally purchased the consumable inventory, and which debt became
immediately due when Bloom Energy unilaterally terminated the business. On July 21, 2015, for
example, Bloom Energy (through its employee Ken Gentert) and Unicat Services (through its
employee John Kent) prepared a list of this consumable inventory and agreed in writing that it was
to be transferred to Bloom Energy (as evidenced by the title of the inventory list), noting in the
writing the price that Bloom Energy was to reimburse Unicat Services for the transfer. Exh. F
48. Months past, however, and Unicat Services never received payment for the agreed
upon repurchased list of consumable inventory. John Kent at Unicat Services continued to ask for
payment with promise that the designated inventory would then be immediately shipped to Bloom
49. Bloom Energy eventually prepared three purchase orders (Exh. G) directed to
Unicat Services that listed all of this consumable inventory previously agreed to be transferred at
the same specified prices found in the Transfer Agreement (Exh. F). Thus, Bloom Energy
acknowledged its contractual obligation, consistent with the prior practice and arrangements the
parties had used for consumable inventory. In response to the purchase orders, Unicat Services
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sent Bloom Energy three invoices demanding payment, as Unicat Services had been demanding
for the several past months. Exh. H (invoices).
50. Bloom Energy employees orally promised to pay the invoices (as if the Transfer
Agreement and its own purchase orders were not enough), but then Bloom Energy continued to
refuse to actually send payment. Bloom Energy one time said that it wanted Unicat Services to
ship the inventory without payment first; Unicat Services told Bloom Energy that Unicat Services
could not extend credit to Bloom Energy given their relationship break down, but offered to ship
the inventory if Bloom Energy would promise to have a check cut for $51,928.73 and waiting to
be picked up on arrival of the shipped inventory at Bloom Energy’s offices. Bloom Energy did not
agree to this, but instead, on January 19, 2016 had its attorney notify Unicat Services that Bloom
Energy was cancelling the three purchase orders and was refusing to pay the $51,926.73 altogether.
51. Thus, this conduct adds to Bloom Energy’s heap of broken and false promises and
to Unicat Services’ damages.
52. As a result of Bloom Energy’s conduct, Unicat Services as a business has been
Breach of Contract
53. Unicat Services realleges and incorporates all preceding paragraphs above.
54. Unicat Services has fully performed all of its obligations under the contracts it had
with Bloom Energy.
55. The parties had enforceable contracts, including one that required Bloom Energy
to provide Unicat Services the service work relating to all of Bloom Energy’s fuel cell canisters
for a reasonable period of time but no less than three to five years, one that required Bloom Energy
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to pay $400 per canister or, alternatively, to pay a reduced per canister charge in lieu of Bloom
Energy purchasing from Unicat Services all of the product to be contained in the fuel cell canisters,
and one that required Bloom Energy to immediately re-purchase the consumable inventory (in the
amount of $51,928.73) back from Unicat Services once Bloom Energy unilaterally terminated the
56. Bloom Energy materially breached its agreements with Unicat Services by
unilaterally terminating the relationship prior to the end of the agreement’s term, by failing to pay
$400 per canister and/or by failing to purchase from Unicat Services all of the catalyst and
materials associated with each canister, and by failing to pay $51,928.73 for the consumable
57. As a result of Bloom Energy’s breach, Unicat Services has been damaged and is
entitled to all just compensation for the loss or damage sustained and as allowed by the law,
including one or all of the following: expectation damages (including benefit of the bargain
damages, lost profits, etc.), reliance damages (including the money, time and resources invested
in building and expanding the business and in lowering its per canister charges) and/or restitution
Performance & Promissory Estoppel
58. Unicat Services realleges and incorporates all preceding paragraphs above.
59. If all or any portion of the agreements between Bloom Energy and Unicat Services
might be considered unenforceable under the Statute of Frauds or for any other reason, Unicat
Services is entitled to alternative relief under the principles of full or partial performance and/or
under the principles of promissory estoppel or similar equitable principles.
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60. Unicat Services fully performed (or alternatively, partially performed) its
obligations under the agreement, which actions would take any infirm portion of the contracts
outside the Statute of Frauds and allow Unicat Services to enforce the agreements at law.
61. Alternatively, Unicat Services is entitled to enforce the agreements under law or
equity under principles of promissory estoppel. Namely, failure to enforce the agreements would
produce an unconscionable and fraudulent result to benefit Bloom Energy who is trying to avoid
its responsibilities under the agreements. Unicat Services relied on Bloom Energy’s promises as
seen in the hundreds of thousands of dollars in investment and activity to build a facility, hire
employees, receive design and training services from Bloom Energy, set servicing prices, etc.
62. Allowing Bloom Energy to prejudice Unicat Services by making representations
and promises knowing that Unicat Services was relying on them to expend time, money and
resources (or in the case of the per canister price reduction, forego money), and then after Unicat
Services had so relied, to unilaterally walk out on its obligations would work a gross injustice, if
not fraud, on Unicat Services.
63. Under this alternative bases, Unicat Services is entitled to all damages at law and
in equity that would be afforded to Unicat Services for Bloom Energy’s breach in this
circumstance, including one or all of the following: actual damages, nominal damages, expectation
damages (including benefit of the bargain damages, lost profits, etc.), reliance damages (including
the money, time and resources invested in building and expanding the business and in lowering its
per canister charges), loss of business damages, and/or restitution damages.
Fraud & Fraudulent Inducement
64. Unicat Services realleges and incorporates all preceding paragraphs above.
Case 3:16-cv-00032 Document 1 Filed on 02/02/16 in TXSD Page 19 of 25
65. On information and belief, Bloom Energy never intended to keep the full scope of
its promises to Unicat Services, but desired to induce Unicat Services into certain actions that
would benefit Bloom Energy until such time that Bloom Energy desired to use its own facilities
or another vendor’s facilities and dump Unicat Services altogether. Some of the material and false
representations that Bloom Energy made in its course of fraud and/or fraudulent inducement
a. Representing to Unicat Services that Bloom Energy would commit to a long
term contractual relationship, no less than three to five years for an initial
term, and if that proved successful, additional years to follow (and failing
to disclose that Bloom Energy was planning on and going to unilaterally
b. Representing to Unicat Services that if Unicat Services invested time,
money and resources in building and expanding manufacturing/assembly
facilities (according to the design and training services that Bloom Energy
would provide), Bloom Energy would be a long term partner and provide
the sole and exclusive business to Unicat Services’ facilities and personnel
(and failing to disclose that Bloom Energy was planning on and going to
unilaterally terminate early);
c. Representing in training and demonstration to Unicat Services that the fuel
cell canisters did not contain hazardous material and could be dumped in
ordinary public landfills (and leading Unicat Services to believe that it could
provide recycle and other services with non-hazardous materials) (and
Case 3:16-cv-00032 Document 1 Filed on 02/02/16 in TXSD Page 20 of 25
failing to disclose that Bloom Energy fuel cell canisters contained highly
d. Representing to Unicat Services that Bloom Energy would pay $400/fuel
cell canister during the long term business relationship;
e. Representing to Unicat Services that Bloom Energy would buy all the
products associated with its fuel cell canisters in return for a reduced per
canister service charge;
f. Representing to Unicat Services that Bloom Energy would rectify, amend
and make up for unfulfilled promises, while at the same time Bloom Energy
was secretly planning on unilaterally terminating the business relationship;
g. Failing to disclose to Unicat Services that Bloom Energy was preparing to
use alternative services and sources for the work and products promised to
be given to Unicat Services;
h. Representing that Bloom Energy would repurchase the consumable
inventory that Bloom Energy required Unicat Services to previously buy
(on Bloom Energy’s behalf) at the time Bloom Energy was
decommissioning Unicat Services’ facilities; and representing that Bloom
Energy would pay the invoices issued for such consumable inventory.
66. For all of the items listed above where Bloom Energy failed to disclose information,
Bloom Energy had a duty to disclose such based on the information Bloom Energy had already
provided that gave a false impression, or communicated half-truths, and based on the commitments
that Bloom Energy was requiring Unicat Services to make.
Case 3:16-cv-00032 Document 1 Filed on 02/02/16 in TXSD Page 21 of 25
67. All of these representations and omissions were material in that they were important
to Unicat Services in the decisions it was making impacting its time, money and resources and the
business it was preparing to venture into and continue with Bloom Energy; and all were false (or
conveyed a false representation).
68. When Bloom Energy made the statements or omissions above, Bloom Energy knew
them to be false or to convey a false representation, or alternatively, made the representation
recklessly, as a positive assertion, and without knowledge of its truth.
69. Bloom Energy made the above representations and omissions with the intent that
Unicat Services act and rely on them or had reason to expect that Unicat would take the actions
specified above. Unicat Services was ignorant of Bloom Energy’s true intentions and did not know
the true state of facts concealed by Bloom Energy.
70. Unicat Services in fact did justifiably rely on them.
71. The fraudulent actions caused Unicat Services damages, including one or more of
the following: Unicat Services’ actual damages, nominal damages, out-of-pocket damages,
benefit-of-the-bargain damages, lost profit damages, destruction of business damages and
Deceptive Trade Practices
72. Unicat Services realleges and incorporates all preceding paragraphs above, and
particularly all of the allegations set forth in the immediate prior Count.
73. Unicat Services is a consumer for purposes of the Texas Deceptive Trade Practices
Act (“DTPA”). Specifically, it sought or acquired goods or services by purchase or lease (or by
bailment). The goods or services sought or acquired included:
Case 3:16-cv-00032 Document 1 Filed on 02/02/16 in TXSD Page 22 of 25
a. Design services for the proper construction and assembly of Unicat
Services’ fuel cell canister assembly plant;
b. Training services for the proper operation and of Unicat Services’ fuel cell
canister assembly plant;
c. Fixed assets used in Unicat Services’ facility to provide the services
requested by Bloom Energy;
d. Consumable inventory used in Unicat Services’ facility to provide the
services requested by Bloom Energy.
74. Bloom Energy can be sued under the DTPA as its DTPA conduct was committed
in connection with Unicat Services’ consumer status identified above.
75. Bloom Energy committed one or more of the following wrongful acts:
a. The unconscionable actions and course of action specified above. Such
included Bloom Energy’s taking advantage of Unicat Services’ lack of
knowledge, ability, experience or capacity to a grossly unfair degree and to
Unicat Services’ detriment; and
b. The false, misleading or deceptive acts under the DTPA statute, including
failing to disclose information (or specifically misrepresenting their
characteristics or benefits) about goods or services that was known at the
time of the transaction, which failure was intended to induce Unicat
Services to enter into a transaction that it would not have entered into if the
information had been disclosed (a list of the undisclosed information is
specified in the prior paragraphs, and particularly in paragraph 65); Unicat
Services’ relied on the false, misleading and deceptive acts to its detriment.
Case 3:16-cv-00032 Document 1 Filed on 02/02/16 in TXSD Page 23 of 25
76. Bloom Energy’s actions were a producing cause of Unicat Services’ damages.
77. Unicat Services is entitled to recover all damages allowed for under the law,
including one or all of the following: economic damages, out-of-pocket damages, benefit-of-the-
bargain damages, lost profits, loss or destruction of the entire business, lost time, and actual
damages. In addition, Unicat Services is entitled to recover in addition to the actual damages up
to three times the amount of economic damages (for a total of four times) because of Bloom
Energy’s knowing and intentional violation.
78. Unicat Services realleges and incorporates all preceding paragraphs above, and
particularly all of the allegations set forth in the immediate prior Count.
79. To the extent applicable, all conditions precedent have been performed or have
occurred pursuant to Tex. R. Civ. P. 54.
80. To the extent applicable, Unicat Services damages and injuries were inherently
undiscoverable and objectively verifiable. Alternatively, Bloom Energy fraudulently concealed the
wrongs made the basis of this complaint in that (a) Bloom Energy had actual knowledge of its
wrongs, (b) Bloom Energy concealed its wrongs by making misrepresentations or by remaining
silent when it had a duty to speak, (c) Bloom Energy had a fixed purpose to conceal the wrongs,
and (d) Unicat Services relied on the misrepresentations or silence.
ATTORNEYS FEES AND COSTS
81. Pursuant to Texas Civil Practice and Remedies Code section 38.001 et seq., and to
the relevant provisions of the Texas DTPA, Unicat Services is entitled to recover all attorneys’
fees through time of trial, for post-judgment motions and for any appeal.
EXEMPLARY & PUNITIVE DAMAGES
Case 3:16-cv-00032 Document 1 Filed on 02/02/16 in TXSD Page 24 of 25
82. Unicat Services is entitled to exemplary and punitive damages by reason of Bloom
Energy’s fraud and fraudulent inducement, as pleaded above.
83. Unicat Services demands a trial by jury on all claims and issues.
PRAYER FOR RELIEF
Unicat Services, as plaintiff, respectfully prays that the defendant Bloom Energy
be cited to appear and answer and that Unicat Services be granted the following damages:
a. Money damages as pleaded above;
b. Prejudgment and post-judgment interest as provided by law;
c. The costs of reasonable attorneys’ fees incurred by Unicat Services in
pursuing this action;
d. Exemplary and punitive damages; and
e. All such other relief, in law or in equity, to which Unicat Services may be
justly entitled to receive.
Dated: February 2, 2016 /s/ Steve Lundwall
Texas State Bar No.: 12696980
Southern District of Texas: 14180
Tel.: (832) 209-4220
LUNDWALL LAW PLLC
8969 Meadow Dr.
Sundance, Utah 84604
710 North Post Oak Road, Suite 400
Houston, Texas 77024
ATTORNEYS FOR PLAINTIFF
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