As 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 jurisdiction; and (2) failing to state a claim upon which relief can be granted. (Under the FRCP, this postpones USGBC’s obligation to answer the complaint until ten days after the Southern District decides the motion, if it is denied). The motion is accompanied by a 29-page memorandum of law and 3-page attorney declaration, which includes a number of exhibits of interest. (The parties had stipulated back in January that USGBC’s response to the amended complaint would be filed no later than today.)
Two of those exhibits – the 2008 New Buildings Institute study and the April 3, 2008 USGBC press release announcing the results of that study as demonstrating that “LEED buildings use 25 to 30 percent less energy than non-LEED buildings” – are particularly noteworthy because of the intense scrutiny that the green building community has given to each. In its memorandum of law, USGBC states that
“the 2008 [press] release does nothing more than accurately report the conclusion of the NBI study and provide a link to the study itself, so that persons in the building industry could make their own judgments about that study. Real estate professionals are free to reject the study’s conclusions, like plaintiffs claim they have done, because of NBI’s express disclosures about how the study was conducted. But that fact does not plausibly or permissibly lead to any inference of false advertising on the part of USGBC.” (emphasis added).
As the memorandum of law notes, a court is permitted to consider documents referenced in a complaint in connection with a motion to dismiss. It will be interesting to see how Mr. Gifford responds to this line of argument in his opposition, and whether the court determines that the NBI study’s conclusions, as presented by USGBC, as well as Mr. Gifford’s other allegations satisfy the heightened pleading requirements of Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), which require enough facts in a complaint to make it plausible — not merely possible or conceivable — that the plaintiff will be able to prove facts to support its claims.
As you will recall, the amended complaint was restructured to directly assert false advertising claims against USGBC under federal, state, and common law after originally being filed as a class action. The complaint is also seeking 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.
Although the discussion of the NBI study is the more interesting aspect of the arguments in the papers, USGBC’s motion is primarily based on the claim that Mr. Gifford and his fellow plaintiffs lack standing on a number of grounds:
Gifford, who alleges he is an energy consultant, has been a longtime gadfly, preoccupied with critiquing USGBC and LEED through the media, internet forums, and the like. Gifford has every right to voice his criticisms of USGBC and LEED in the public forums of his choosing. But unlike the internet and the public square, access to the federal courts is limited to those with standing to sue.
USGBC goes on to allege that (1) the plaintiffs fail to properly allege that they are competitors of USGBC such that they can maintain their false advertising claims; and (2) the amended complaint’s allegations of injury are “conclusory,” “general,” and “too disconnected” from any “specific wrongdoing” by USGBC to demonstrate an “injury-in-fact” to confer standing on the plaintiffs.
USGBC’s motion is returnable on April 21, and we’ll keep an eye out for opposition and/or reply papers in the coming weeks, subject to any changes in the motion schedule. Again, the Southern District’s docket number is 1:10 CV-7747.