This past Tuesday, July 26, U.S. District Court Judge Leonard Sand heard oral argument on USGBC’s motion to dismiss Henry Gifford’s amended complaint in Gifford et al. v. USGBC, still pending in the Southern District of New York. As you may recall, USGBC’s motion was fully submitted to the court on May 6. Based on Rule 12(b) of the Federal Rules of Civil Procedure, the motion claims that (1) Mr. Gifford and his fellow plaintiffs lack standing to maintain their suit; and (2) the amended complaint fails to state a cause of action upon which the SDNY can grant relief to Mr. Gifford and his fellow plaintiffs.
Although we don’t have a copy (yet) of a written transcript of the proceedings, Norah Hart, who serves as counsel for Mr. Gifford was kind enough to share some thoughts with GRELJ about what took place during the oral argument, which apparently focused on whether the 2008 New Buildings Institute study (claiming 25 to 30 percent energy savings in LEED-certified buildings) should be considered advertising under the federal Lanham Act.
“Judge Sand was skeptical about two critical aspects of the case: (1) whether the claim of ’25 to 30 percent energy savings’ in LEED-rated buildings can be attributed to USGBC (never mind that the NBI study that arrived at that conclusion was commissioned by USGBC and that USGBC propagates that myth relentlessly); and (2) whether the NBI study’s conclusions can be considered advertising,” Ms. Hart wrote to us in an email.
Whether the NBI study is advertising is a key threshold issue because USGBC’s moving papers argued that Mr. Gifford’s amended complaint failed to “plausibly allege” a Lanham Act claim for false advertising, and that “the 2008 [press] release [describing the results of the NBI study, concluding that new LEED-certified buildings are on average performing 25 percent to 30 percent better than non-LEED buildings in terms of energy use] 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.”
No word on when we can expect to see a written decision from Judge Sand, but we’ll keep you posted. The Southern District’s case number is 1:10-CV-07747.