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Gifford Lawsuit Against USGBC, LEED Dismissed

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The judge issued a strongly worded dismissal, but Henry Gifford is considering an appeal in a case brought over alleged false advertising of energy savings in LEED-certified buildings.

By Tristan Roberts

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U.S. District Court Judge Leonard Sand has dismissed Henry Gifford's case against USGBC and LEED. Gifford is considering an appeal.

A lawsuit filed in October 2010 against the U.S. Green Building Council (USGBC) and its LEED rating systems has been dismissed in a strongly worded ruling issued August 16. Following a motion by USGBC to dismiss the case and a court hearing of oral arguments in July 2011 a judge in federal court in New York City ruled against Henry Gifford and the other plaintiffs, throwing out the case.

The suit, brought by Gifford, a New York-based mechanical systems consultant, centers around his critique that USGBC falsely advertises that LEED guarantees energy savings in LEED-certified buildings (see “USGBC, LEED Targeted by Class-Action Suit,” EBN, Oct. 2010). Rather than issuing an opinion on that critique, however, the court focused on flaws in Gifford’s logic in bringing the case.

‘Plantiffs not losing customers’

First, the court ruled that Gifford and the other plaintiffs, a handful of other building professionals, cannot bring the suit because they cannot show that they have been harmed by USGBC. Gifford had alleged that he was unfairly losing work to LEED Accredited Professionals (LEED APs), whose credentials are unfairly boosted by USGBC’s alleged false claims.

However, as Judge Leonard Sand wrote in his ruling, “Plaintiffs plainly do not compete with USGBC in the certification of ‘green’ buildings or the accreditation of professionals. Rather, they purport to compete with USGBC in what they call the ‘market for energy-efficient building expertise.’ USGBC does not provide clients with advice about energy-efficient design; nor does it provide design services relating to any of the fields in which Plaintiffs specialize. Rather, it is a not-for-profit organization that reviews and rates designs created by others. While some of Plaintiffs’ competitors in their individual fields may be LEED accredited, Plaintiffs and USGBC operate in different arenas.”

Furthermore, Judge Sand said, “Because there is no requirement that a builder hire LEED-accredited professionals to attain LEED certification, it is not plausible that each customer who opts for LEED certification is a customer lost to Plaintiffs.”

Energy claims “too speculative”

Judge Sand also stated that Gifford was not able to show that the alleged false claim by USGBC, which stems from a 2008 study by the New Buildings Institute, had made an impact on the marketplace. “Whatever the merits of Plaintiffs’ claim that the conclusion of the study was false,” said the judge, any claims to that effect were “too speculative.” Calling the claim a “last-ditch effort” to save their case, Judge Sand also dismissed as “too vague and speculative” the idea submitted by Gifford that USGBC is harming the entire field of green building, and that consumers “will discount all claims of energy saving through design and construction” as a result of USGBC’s false advertising.

While dismissing the entire suit, Judge Sand also dismissed the federal false advertising claims “with prejudice,” meaning that the Court’s dismissal of those claims is final and that plaintiffs are barred from filing a new suit based on those claims.

A sequel no more likely to succeed

Contacted by EBN, Gifford said he is “pretty discouraged” by the ruling. While he didn’t rule out appealing, saying “I’ll look at the papers first to see if it looks ripe for it,” he said he is “sick and tired” of spending time and money on the lawsuit. While the main lawyer on the case, Norah Hart, was working on spec, Gifford told EBN he had spent $5,000–$10,000 in hiring other lawyers and professionals to build the case. (In a later conversation with EBN, Gifford said that he has heard from another potential plaintiff: an architect who would be better able to show standing in a case against USGBC. In light of that, Gifford said, “I am sure thinking about” an appeal.)

According to Gifford, Judge Sand asked Gifford in oral arguments why he didn’t sue the New Buildings Institute, which created the allegedly false study quoted by USGBC in a press release. The judge also suggested that Gifford sue other LEED APs, against whom Gifford competes more directly. However, Gifford said that was impractical, and in any case, his ire is focused on USGBC. Continuing his pattern of ignoring the existence of the LEED for Existing Buildings program, he said: “LEED is my industry’s way of postponing the day of measurement,” when all buildings will be judged on actual energy use.

Larry Weinstein of Proskauer Rose LLP, the lead counsel for USGBC in the lawsuit, told EBN that the judge’s decision was “absolutely correct” and that an appeal would have no more legitimacy. “We hope that Gifford will continue to lend his voice to the issues that concern him, but the courts just aren’t the right place for this,” said Weinstein. “His grievance clearly appears to be with how the LEED rating system works, but that has got nothing to do with false advertising.”

USGBC, meanwhile, is hopeful that this distraction is over. In a statement, Rick Fedrizzi, president, CEO, and founding chair of USGBC, said, “This successful outcome is a testament to our process and to our commitment to do what is right. Thousands of people around the world use LEED because it’s a proven tool for achieving our mission of transforming the built environment. We’re grateful that the Court found in our favor so we can give our full attention to the important work before us.”

For more information

USGBC Press Release on Lawsuit Dismissal (PDF)

Copy of Dismissal Order – Posted on GreenBuildingLawBlog.com (PDF)

Analysis on GreenBuildingLawBlog.com

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August 17, 2011