LEED Lawsuit Dismissed But More Litigation Expected

 

A New York federal judge dismissed the lawsuit brought by Henry Gifford vs. U.S. Green Building Council in an August 15, 2011 ruling. However, observers indicated this case could lead the way to more litigation.

The original $100 million dollar class action lawsuit was filed on October 8, 2010 in the U.S. District Court, Southern District of New York by Henry Gifford of Gifford Fuel Saving Inc. The lawsuit claimed Leadership Environmental and Energy Design (LEED) certified buildings actually use 29% more energy than conventionally-built structures, not the 25-30% energy improvement the USGBC claims.

 

The lawsuit was then amended on February 7th, 2011 focusing on USGBC’s alleged false advertising that LEED guarantees energy savings. The lawsuit was now no longer a class-action lawsuit and the plaintiffs were four design and construction professionals on behalf of other industry professionals. The lawsuit alleged that the Green Building Council’s false statements diverted customers from the plaintiffs’ businesses to LEED-accredited professionals, which they did not prescribe to.

 

 

Judge’s Ruling

New York federal Judge Leonard B. Sand ruled that the plaintiffs did not have a standing to sue under federal law based on not competing with USGBC. “Plaintiffs plainly do not compete with USBC in the certification of ‘green’ buildings or the accreditation of professionals,” Judge Sand said in his decision. “Likewise, plaintiffs do not adequately allege a reasonable commercial interest that is likely to be damaged by USGBC’s alleged false statements.” The court did state the plaintiffs still could bring false advertising and deceptive trade practices claims under New York state law. The ruling may be appealed and the plaintiffs are weighting their options.  

 

Future Litigation

Attorneys following the case indicated “this case, laid out a potential road map for potential discovery on LEED and the USGBC's green building rating process in general. An attorney goes on to say "if others follow Mr. Gifford’s lead, the case does provide some viable areas for inquiring how it is that the LEED program was developed and how it is administered. There’s always the possibility that another plaintiff could pick up on the first steps taken by Mr. Gifford and take the case to the next level.”

 

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