LEED Lawsuit Amended
Introduction
The $100 million dollar lawsuit filed in October 2010 against the U.S. Green
Building Council (USGBC) and it’s Leadership in Environmental and Engineering
Design (LEED) rating system has been amended. Filed February 7th, 2011, the
amended lawsuit focuses on USGBC’s alleged false advertising that LEED
guarantees energy savings. The
lawsuit is also no longer a class-action lawsuit and the plaintiffs are four
design and construction professionals on behalf of other industry professionals.
Amended Claim
The amended claim states professionals; “are losing
customers because USGBC's false advertisements has mislead the consumer into
believing that obtaining LEED certification incorporates construction
techniques that achieve energy-efficiency.” Instead of a class of plaintiffs
harmed by LEED, Gifford the original plaintiff, a mechanical engineering
consultant brought on three other professionals to the complaint; an architect
and two engineers. One of the newly added plaintiffs, Andrew Äsk, P.E., a
Florida-based engineering consultant was asked how he has been harmed by USGBC. “It is becoming
more common for institutional owners to be listing LEED credentials as a
requirement to do work for them,” he said. “Since I don't subscribe to USGBC I
am shut out of most projects.”
Lawsuit’s Center
At the center of the lawsuit is Gifford’s assessment of a
2008 study from New Buildings Institute (NBI) and USGBC of the energy
performance of buildings certified under LEED for New Construction and Major Renovations
(LEED-NC). The NBI study states that “LEED buildings are on average, 25%–30%
more efficient” than the national average. Gifford’s 2008 analysis concluded that
“LEED buildings are on average, 29% less efficient”. The suit goes on to say; “USGBS’s
own study data on the subject indicates on average, LEED buildings use 41% more
energy than non-LEED buildings” and continues to say “LEED does not verify
certified buildings are designed and built in a manner that leads to energy
savings.”
The original lawsuit claims “USGBC fraudulently used false
advertising by intentionally omitting material information”, i.e., the fact the
“NBI study sample was comprised of just 22% of LEED certified buildings, not
all LEED certified buildings” and “USGBC knowingly selected a skewed sample”.
Using the NBI study and USGBC’s promotion of it, the suit alleges fraud under the
Lanham Act, Unfair Competition. This act was conceived to prevent deceptive,
false, misleading marketing practices in the connection with goods and services
used in commerce. These activities are liable in a civil action for damages.
The second cause of action is under Deceptive Trade Practices, New York State
General Business Law related to deceptive acts or practices in the conduct of
any business, trade or commerce or in the furnishing of any services.
Plaintiffs Request
Gifford and the other design and construction plaintiffs
request a permanent injunction ordering USGBC to “immediately cease the
dissemination of any advertising, marketing, or promotional statements, weather
made expressly or by implication that...":
- LEED buildings are performing 24-30% better than non-LEED
certified buildings.
- LEED buildings use less energy than non-LEED buildings.
- LEED certification is proof, or verification in any way,
that a building has been built according to plans.
- Cease in any way misrepresenting or exaggerating the
benefits of LEED.
A request to award the plaintiff’s damages pursuant to
statutory law of New York relate to:
- USGBC profit derived from unlawful conduct.
- Plaintiffs damages sustained by USGBC’s unlawful acts, to
be in trebled in accordance with the law.
- Other requests related to attorneys fees, costs and expenses.
The deadline for USGBC’s legal response is April 7th.
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