Late yesterday, the group of plaintiffs led by Henry Gifford filed an amended complaint against the USGBC in the Southern District of New York. As you likely recall, Gifford commenced the action last October in the form of a class action, alleging violations of the Sherman and Lanham Acts for “deceiving users” of the LEED system about “whether LEED buildings use less energy than conventionally-built buildings.”
The amended complaint – which also features two engineers (Andrew Ask and Elisa Larkin) and an architect (Matthew Arnold) as plaintiffs – is notable because it is no longer structured as a class action, and essentially asserts false advertising claims directly against USGBC under federal, state, and common law. However, the plaintiffs continue to seek injunctive relief against USGBC, enjoining it from promoting the energy efficiency of LEED buildings and/or “benefits of the LEED system” and compelling it to “disclose the actual energy use of LEED properties,” as well as money damages. Also of interest is that Rick Fedrizzi, Rob Watson, and the other individuals named as defendants in the class action are no longer parties.
The Southern District’s docket numer is 1:10 CV-7747, and the USGBC (which is being defended by Proskauer Rose) has until April 7 to respond to the complaint, presumably by way of a motion to dismiss.
A copy of the First Amended Complaint is available for download here.
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Stephen, thanks for sharing your analysis. I wanted to let you and your readers know that they can find more thoughts from you, and from one of the new plaintiffs in an article I just posted to Environmental Building News:
http://www.buildinggreen.com/auth/article.cfm/2011/2/8/New-Plaintiffs-Join-Amended-LEED-Lawsuit-Gifford-USGBC-AP
I will be curious to see how this unlikely case unfolds.
Great, thanks, Tristan, I obviously share your curiousity about where this all heads over the next few months.
I’m interested to see how this pans out.
Someone needs to file against the EPA and Energy Star.
John Scofield at Oberlin has written about Energy Star:
http://www.oberlin.edu/physics/Scofield/
The amended complaint reflects an expedited path, as Del Percio inferred, to discovery. There were many choices to be made, in terms of the range of potential plaintiffs, and the cognizable claims. Fostering public awareness and demanding accountability of USGBC is our goal, whether through a consumer class action, or an anti-competitive/deceptive trade action, or both. Plaintiff Andrew Ask gives a succinct explanation of our goal: “to let the market for green buildings develop based on actual measured results, not predictions, and not hand-picked data samples.” We appreciate the interest and the support.