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Gifford vs. USGBC Lawsuit Amended

The case of Henry Gifford vs. the US Green Building Council (USGBC) has been amended, adding new plaintiffs and softening the charges against the LEED rating system.

The original lawsuit, filed in November of 2010, accused the USGBC of fraud, false advertising, deceptive trade practices, and unfair competition. The amended lawsuit drops the class action claim, and focuses only on the false-advertising and deceptive trade practices as outlined under Federal and New York law.

The new suit no longer names Rick Fedrizzi and Rob Watson as defendants, and does not put a dollar amount on the damages suffered, but instead requests all of USGBC’s profit derived from the unlawful conduct as well as damages suffered by the plaintiffs because of USGBC's "unlawful acts."

The key argument remains the same – the USGBC falsely advertises that its buildings save energy. According to the plaintiffs, the USGBC's own data suggests they use 29% more energy. The lawsuit uses the Northland Pines High School LEED certification challenge as evidence. The lawsuit quotes the public statement released by the appellants who served on the Northland Pines building committee:

“On behalf of the taxpayers of Vilas County who would like to know with certainty whether they got what they paid for or not, we ask the engineering community to look at this file and tell us, did we miss something here? How can it be all right to certify a building that doesn’t fully comply with the rules set forth by the body that is doing the certifications?”

According to the Gifford lawsuit:

  1. USGBC's false advertising causes consumers of building design and construction advice to utilize a LEED-certified professional instead of Plaintiffs because consumers mistakenly believe that LEED-certified professionals will design a LEED-certified building that is verified by a third-party to be more energy-efficient than the building that Plaintiffs would design;
  2. USGBC's false advertising causes consumers of building design and construction services to purchase the design and construction advice contained in the LEED certification system as opposed to purchasing Plaintiffs' design and construction advice;
  3. Dollars spent on LEED are dollars not available for more productive, performance-based designs like the ones designed by Plaintiffs.

In addition to Henry Gifford, the suit named three new defendants; Elisa Larkin of Fuel Savings, Inc.; Andrew Ask, an engineering consultant; and Matthew Arnold.

Andre Ask told the Architectural Record he supports the USGBC's efforts, but not its methods, saying that the USGBC has been “unfairly strengthened" by it’s false advertising.

“It is becoming more common for institutional owners to be listing LEED credentials as a requirement to do work for them,” Ask said. “Since I don't subscribe to USGBC I am shut out of most projects.”

Many in the legal field feel the lawsuit is flawed.

"Fraud requires 'reasonable reliance' on the false statements. The difficulty here is that, although more plaintiffs have been added, they are still not plaintiffs that were 'duped' by the USGBC's representations," Shari Shapiro, a green building law attorney wrote on her blog. "The claims alleged by Gifford are really claims rightfully brought by people who have been harmed by spending too much on LEED buildings, or LEED accreditation.  In essence, Gifford has not eliminated the standing problem that doomed his class action."

However, Shapiro feels that the USGBC will not be successful in having the case dismissed, which could make the internal communications of the USGBC available to the public.

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