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Class Action No More: Gifford-Led Plaintiffs File Amended Complaint Against USGBC

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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11 Responses to Class Action No More: Gifford-Led Plaintiffs File Amended Complaint Against USGBC

  1. Tristan Roberts February 8, 2011 at 5:00 pm #

    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.

    • Stephen Del Percio February 8, 2011 at 5:37 pm #

      Great, thanks, Tristan, I obviously share your curiousity about where this all heads over the next few months.

  2. Tim February 9, 2011 at 4:55 pm #

    I’m interested to see how this pans out.

  3. Bruce Wingfield February 9, 2011 at 11:34 pm #

    Someone needs to file against the EPA and Energy Star.

  4. Norah Hart February 15, 2011 at 5:11 pm #

    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.

Trackbacks/Pingbacks

  1. New Plaintiffs Join Amended LEED Lawsuit | News | Architectural Record « bannermancontracting - February 10, 2011

    [...] amended suit is “cleaner” according to Stephen Del Percio, a lawyer and author of the blog GreenRealEstateLaw.com. “It doesn’t have to go through the certification of the class and that sort of hurdle [...]

  2. Gifford’s LEED Lawsuit Downgraded… | DemandSideSolutions - February 10, 2011

    [...] …no longer class action. I’m a little late on this: 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. No Comments by mike on February 10, 2011 filed in links & random tagged LEED [...]

  3. Update on $100 Million Class Action Lawsuit against USGBC « Florida Green Building Law - February 22, 2011

    [...] http://www.greenrealestatelaw.com/2011/02/class-action-no-more-gifford-led-plaintiffs-file-amended-c… [...]

  4. It's Complicated: New York City Green Buildings Balk At, Earn LEED Certification | greenbuildingsNYC - February 22, 2011

    [...] currently hanging over the buzz about municipal leadership in green building practices is whether Henry Gifford’s suit against the USGBC will eventually play a role in impacting LEED registrations moving forward. Our, answer, for now? [...]

  5. USGBC Files Motion to Dismiss Henry Gifford's Amended Complaint | Green Real Estate Law Journal - April 6, 2011

    [...] expected, earlier today USGBC filed a motion to dismiss Henry Gifford’s amended complaint pursuant to Rule 12(b) of the Federal Rules of Civil Procedure for (1) lack of subject matter [...]

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