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Two Dudes Talking About A(n Unsuccessful) Lawsuit: gbNYC’s Meta-Interview On Henry Gifford’s Case Against LEED

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You may remember green building mega-gadfly Henry Gifford’s ambitious lawsuit against LEED, and you may even remember Stephen and me discussing it here at gbNYC earlier this year. With the recent dismissal of Gifford’s (already scaled-back) false-advertising suit against the USGBC, Stephen and I decided to talk about it again. He is playing the role of The Guy Who Knows What He’s Talking About. I am playing myself, in every possible way.

David Roth: So, it looks like the dream is over for Henry Gifford. Or… I don’t know, is the dream over for Henry Gifford? “The Dream” in this case being Embarrassing USGBC/LEED In Court.

Stephen Del Percio: I’d stay away from “embarrassing.”

David Roth: Okay, I’ll make sure to change the wording on that before we run this chat. But you know what I mean: the dream = proving, one way or another, that LEED is flawed and rickety in all the areas in which Henry Gifford ordinarily describes it as being flawed and rickety.

Stephen Del Percio: Is the dream over completely? No. Building Green.com interviewed Gifford last week and he’s still weighing his options. He could appeal the decision and, although he’s barred from bringing the same claims again in federal court, he could assert them in state court but with new plaintiffs that might have a better chance of proving standing.

David Roth: He’s a man on a mission, so obviously I wouldn’t rule anything out. But is there anything like good news for him in this dismissal? Being as it’s, you know, a dismissal I’d assume not. But you’re the lawyer, and I’m the guy who makes odd jokes about sports.

Stephen Del Percio: Unfortunately, not really. The written opinion from the court (available here) doesn’t really touch the merits of his claims at all and turns primarily on the standing issue (a procedural legal concept that controls who has access to the courts to bring a claim).

David Roth: If this is a case of “You weren’t actually hurt by this alleged false advertising, so you can’t bring the case,” how can he ever bring this particular case, in any court or before any judge? The whole thing always seemed kind of quixotic to me, I’ll confess, if only because (to my sportswriter-y understanding of it) the Sherman and Lanham Acts are a big deal, and I could never quite figure out how what he was alleging fit within all that. Or if it did.

David Roth: Evidently I am not alone in that.

Stephen Del Percio: It’s not really a judge issue. Standing is just a fancy way of saying that a plaintiff has enough of a connection between the injuries he/she is alleging to be participating in the lawsuit. If a court can determine that a plaintiff has no standing, it doesn’t have to get to the merits, and it saves itself a ton of work.

Stephen Del Percio: Here, the court said that Gifford couldn’t demonstrate an “injury-in-fact,” that his allegations about personal financial damage from losing prospective customers who were instead seduced by LEED’s promise of energy efficiency were too speculative.

David Roth: Even to someone inclined to be skeptical/critical of LEED, I can see that. So is there a chance he could establish standing in a state court? Because it’s the same stretch, right?

Stephen Del Percio: There is a chance, yes. He would have to file a brand new lawsuit, probably with new plaintiffs, and craft it such that it anticipates those same standing arguments. But USGBC (and now we’re dabbling in areas of civil procedure that are highly technical) could argue that he is collaterally estopped from asserting the claims because the standing issue was already litigated in the federal case.

Stephen Del Percio: Collateral estoppel means that because an issue was litigated previously, even in another court, the pending court doesn’t/shouldn’t address it for purposes of judicial economy. But it’s unclear how a New York state court would treat a New York federal issue, particularly because the federal court addressed Gifford’s standing under the federal statues and not the state statutes on which any new state court suit would likely be based.

David Roth: Can it possibly be worth it at this point? Or I guess what I mean by that is that I know he’s got a point to prove, and I think it’s actually a point worth proving — although I don’t know that my feelings on LEED are quite as (um) intense as his. But it seems like it might be difficult to prove it this way, no?

Stephen Del Percio: It would obviously be very interesting to see whether the state law claims have any legs. But, I do think most everyone who has followed the suit think Gifford’s made his point. He drew attention to the 2008 NBI Study, he critiqued LEED and USGBC in a very public forum, and everyone in the industry has heard about him and his misgivings about LEED. He even admitted in his reply papers on the motion that the relief he was most interested in wasn’t money damages but full disclosure from USGBC about LEED building energy performance. And USGBC seems to be moving in that direction anyway in LEED 2012.

David Roth: Everyone could just declare victory if that happens, I guess. And I don’t even think they’d be wrong.

Stephen Del Percio: Agreed. We’ll just have to wait and see. USGBC very publicly trumpeted the decision, so perhaps Gifford’s waiting for that to die down a bit before announcing his next move. Or perhaps it’s all said and done.

David Roth: I’m sure we’ll find something else to talk about eventually.

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2 Responses to Two Dudes Talking About A(n Unsuccessful) Lawsuit: gbNYC’s Meta-Interview On Henry Gifford’s Case Against LEED

  1. Anne Whitacre August 25, 2011 at 11:05 am #

    The suit that I would like to see — and am surprised hasn’t shown up yet — is the claim that LEED (and many municipalities) make that LEED is “voluntary”. Clearly if you want to work on projects for public agencies, LEED is not voluntary — in many locations, the implementation of LEED is code required, or agency required. I’m surprised that someone hasn’t challenged the idea of a governmental agency requiring compliance with a third-party, unregulated rating system that has nothing to do with safety. (I make this exception because governments often require compliance with UL or Factory Mutual systems, but their purpose is to ensure safety of the occupants.) California recently adopted CALgreen, which is in some ways more restrictive than LEED, and less restrictive in other ways — but as part of the buidling code, CALgreen will be enforced by the State of California. There is where I think that “green codes” should be moving: if energy use is a state concern, then energy use should be enforced by the state.

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