Re: Class Action Law Suit Against USGBC

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USGBC, LEED Targeted by Class-Action Suit

Henry Gifford, whose lawyer filed a class-action lawsuit against USGBC, has been

an outspoken LEED critic since 2008.

The U.S. Green Building Council (USGBC) and its founders have been named as

defendants in a class action lawsuit filed in federal court. Filed on behalf of

mechanical systems designer Henry Gifford, owner of Gifford Fuel Saving, the

lawsuit was stamped on October 8, 2010 at the U.S. District Court for the

Southern District of New York. Among other allegations, the suit argues that

USGBC is fraudulently misleading consumers and fraudulently misrepresenting

energy performance of buildings certified under its LEED rating systems, and

that LEED is harming the environment by leading consumers away from using proven

energy-saving strategies.

Alleged fraud and deceptive practices

The suit alleges that USGBC's claim that it verifies efficient design and

construction is " false and intended to mislead the consumer and monopolize the

market for energy-efficient building design. " To support this allegation Gifford

relies heavily on his critique of a 2008 study from New Buildings Institute

(NBI) and USGBC that is, to date, the most comprehensive look at the actual

energy performance of buildings certified under LEED for New Construction and

Major Renovations (LEED-NC). While the NBI study makes the case that LEED

buildings are, on average, 25%–30% more efficient than the national average,

Gifford published his own analysis in 2008 concluding that LEED buildings are,

on average, 29% less efficient. A subsequent analysis of the NBI data by

National Research Council Canada supported NBI's findings, if not its methods.

(Commentary questioning the respective statistical approaches of both the

original study and Gifford's analysis appears in this BuildingGreen.com blog

post by Nadav Malin, president of EBN's publisher BuildingGreen.)

Using that study and USGBC's promotion of it, the suit alleges fraud under the

Sherman Anti-Trust Act, among other statutes. Gifford's suit demands that USGBC

cease deceptive practices and pay $100 million in compensation to victims, in

addition to legal fees. Under the Lanham Act, the suit repeats the same concerns

in alleging deceptive marketing and unfair competition. Other allegations

include deceptive business practices and false advertising under New York State

law, as well as wire fraud and unjust enrichment.

Class-action suit

By having his lawyer, Norah Hart of Treuhaft and Zakarin, file a class-action

lawsuit, Gifford is not only claiming that he has been harmed by USGBC, but that

he is one of a class of plaintiffs that have been harmed. According to the suit,

those plaintiffs include owners who paid for LEED certification on false

premises, professionals like Gifford whose livelihoods have allegedly been

harmed by LEED, and taxpayers whose money has subsidized LEED buildings.

The class action approach may be technically difficult to pursue in this case,

says lawyer Shari Shapiro in an article on her green building law blog. Among

other things, Shapiro notes that in a class action suit it is relevant whether,

among other things, " the plaintiffs are enough alike so that their claims can be

adjudicated together " and " whether the lead plaintiffs adequately represent

members of the class. " Given the variety of plaintiffs Gifford is trying to

represent, that may be hard, she says.

Shapiro, assuming that Gifford has benefited from the green building wave, even

questions whether Gifford has even been harmed, as he would have to be to take

part in the lawsuit. However, Gifford told EBN that there's no question about

that. " Nobody hires me to fix their buildings, " he said. Though not an engineer,

Gifford is respected in energy efficiency circles for his technical knowledge.

He told EBN that he has lost out because owners are fixated on earning LEED

points, and he doesn't participate: " Unless you're a LEED AP you're not going to

get work. " That's unfair, he claims, because while USGBC says that its product

saves energy, it doesn't. Gifford says that his services actually save energy,

and he's prepared to prove it by sharing energy bills from buildings he has

worked on.

Whether many other building professionals feel the way Gifford does, and whether

they're willing to go on the record, will be one aspect of this case to watch.

Gifford indicated that the response so far has been mixed. As he told EBN,

" Everybody has the same response: thank you, thank you… let me know how it

goes. "

Was there fraud?

If the case does move ahead, Del Percio, a lawyer and author of the blog

GreenRealEstateLaw.com, told EBN that it will be challenging to litigate. " You

can't prove fraud just by circumstantial evidence, " he said. Even if the NBI

study is false, that may not be enough. " You have to intend to mislead people, "

he said. Gifford told EBN that he doesn't have evidence that anyone at USGBC

tried to mislead the public, but if the suit proceeds the discovery process

could, in theory, turn up emails or other communications that support Gifford's

case.

USGBC performance initatives

Gifford's complaints focus on the 2008 study and how USGBC publicized it, but

they don't appear to account for other aspects of LEED. Gifford focuses on

buildings certified under LEED for New Construction (LEED-NC), but the scope of

LEED-NC and other LEED rating systems is clearly distinct. LEED for Existing

Buildings, launched in 2004, looks at actual building performance, and in 2006,

USGBC announced that buildings certified under LEED-NC would have the option of

being enrolled at no charge in LEED for Existing Buildings. In 2007 USGBC

launched LEED for Homes. While that system focuses on design and construction of

new homes, it requires on-site verification including blower-door testing during

construction, helping ensure that construction practices follow the design

intent.

Although this final piece may be too late for Gifford and the contentions of his

lawsuit, in 2009 USGBC began requiring reporting of energy and water data for

new buildings certified under the newer LEED 2009, and it set up infrastructure

to invite sharing of information from all LEED-certified buildings (see " USGBC

Expands Data Collection from LEED Buildings, " EBN Aug. 2010).

Through this effort, the Building Performance Partnership, USGBC hopes to offer

special help to LEED-certified buildings that are not living up to expected

performance, according to n Owens, P.E., vice president for LEED technical

development at USGBC. Although USGBC has generally played down the possibility

because it doesn't want to discourage participation in LEED, and energy

reporting, CEO Rick Fedrizzi has suggested that non-performing buildings may

lose LEED certification in one form or another.

Despite these efforts, Gifford complained to EBN that " the green label gives the

designer, the developer, the contractor and the owner the right to hold a press

conference staying that their building is energy-efficient, while the LEED

system guarantees anonymity " when it comes to reporting actual energy use.

Why sue?

Asked by EBN why he was motivated to go to court, Gifford said, " I'm afraid that

in a few years somebody really evil will publicize the fact that green buildings

don't save energy and argue that the only solution [to resource constraints] is

more guns to shoot at the people who have oil underneath their sand. " In other

words, he says he's hoping to make the green building movement more honest so

that it's not embarrassed down the road.

USGBC told EBN that it was reviewing the litigation and would respond in due

course. In addition to USGBC, other named defendants are Gottfried, a

USGBC founder; Rob , who helped start LEED in the 1990s while working for

the Natural Resources Defense Council; and Rick Fedrizzi, a co-founder and

currently CEO. Responding to EBN's request for comment, said, " I can't

comment on ongoing litigation except to say that USGBC is examining the

complaint. USGBC has confidence in LEED and in our role in stimulating positive

market change. "

Italiano, the only key USGBC founder not named as a defendant, told EBN

that while he hadn't reviewed the case, " To me it sounds frivolous and it

doesn't have much chance. " He noted, " LEED doesn't guarantee anything, and I

think LEED gives people the tools to understand that. " Owners who want to verify

performance can enroll in LEED for Existing Buildings, monitor their energy

bills, and take other actions, he noted. A lawyer and currently CEO of Market

Transformation to Sustainability, a nonprofit behind green standards, Italiano

said that lawsuits targeting standards that have allegedly constrained trade

typically focus on lack of a bona fide consensus process of standard-setting. In

the case of LEED, he said, a broad array of stakeholders has been involved in

writing and reviewing LEED standards.

, FAIA, of Group, agreed that if anyone thinks LEED for New

Construction guarantees higher energy performance, they have the wrong idea.

" LEED-NC is saying that a building has been designed to meet a certain standard,

but there are many variables that go into the actual performance, only one of

which is design. " also noted that LEED includes a broad array of topics,

only one of which is energy. Referring to climate change and other environmental

and health issues, added, " I don't think that this kind of distraction

helps us move the ball down the field. "

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> Received the below message with the class action documents attached.

> Sharon

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> _Class Action Law Suit Against USGBC_

> (http://freepdfhosting.com/05a1b614e5.pdf)

>

> A class action lawsuit has been filed in New York against USGBC, the

> association that certifies LEED Buildings and Professionals.

> Please feel free to pass this information on....

>

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>

> The highest courage is to dare to be yourself in the face of adversity.

> Choosing right over wrong, ethics over convenience, and truth over

popularity…

> these are the choices that measure your life. Travel the path of

> integrity without looking back, for there is never a wrong time to do the

right

> thing. ~Unknown

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> Hi -

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> Anyone else who wants to help change the world can click on

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> http://www.consumerclasslaw.com/ "

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