Gifford Files Class Action Lawsuit Against USGBC
Last Wednesday, I woke up bleary eyed to catch a flight to New Orleans for the Green Legal Matters conference. Despite the fact that I was running late, I opened up my RSS feed and was suddenly startled wide awake when I read the following headline:
"Breaking: Henry Gifford Leads Class Action Lawsuit Against USGBC in Southern District of New York"
No longer concerned about the time, I found myself reading through the twenty-three page complaint, which makes numerous allegations against the USGBC and sets the table for a large class action lawsuit. I can tell you that the complaint was one of the hot topics at the Green Legal Matters conference in New Orleans. Today, I will discuss the basics of the complaint and on Wednesday I will discuss the initial hurdle of class certification. Frankly, I am not sure the lawsuit gets beyond the certification level.
You may be wondering what is the motivation of the plaintiff, Henry Gifford, to file this lawsuit? The answer appears on page two:
"L.E.E.D.-accredited professionals are often, and increasingly, people with 'no experience whatsoever.' When L.E.E.D.-accredited professionals design and build buildings instead of skilled professionals, such as the Plaintiffs, with years of experience making safe, comfortable, and energy-efficient environments, the marketplace, consumers, and the environment often suffer."
LEED accredited professionals can't be skilled professionals? I have a feeling some readers will take umbrage at that statement.
Gifford then alleges two instances of fraudulent misrepresentation by the USGBC: (1) the New Building Institute study commissioned by the USGBC in 2008 allegedly included skewed data; and (2) the USGBC allegedly mislead the market by claiming LEED certification is third-party verified. Based on these allegations, the complaint then lists the following causes of action: monopolization through fraud, unfair competition, deceptive trade practices, false advertising, wire fraud, and unjust enrichment.
And what does Gifford ask for as a result of these alleged transgressions? $100,000,000.
What's your initial take on the complaint?
Slowing the LEED train is not a bad idea. LEED as a process is not in itself conducive to sustainable design. It certainly doesn't require an architect or engineer to manage the LEED process, and more often than not, someone who is not on the technical production team is hired to manage the LEED process. I'm afraid, however, that the marketing machine that is LEED has been pretty successful at correlating the two. This may be the chief reason for the complaint. I would hope that sustainable design would not suffer due to potential threat to LEED. It appears at least part of the suit is the assertion that there is a difference between LEED and sustainable design. In any case, I would suggest that architects and engineers liabilities are not alleviated through LEED.
That aside, I would propose that something needed to--and still needs to--move the market more toward sustainable design. This is LEED's great potential.
Full disclosure: I am an architect and LEED AP without specialization.
I was in an all day seminar after reading Henry's 2008 complaint about LEED and writing about it favourably. He went on and on for a day about piping, about boilers, about stuff that had little or no relevance. But I thought he was a character, a useful gadfly.
This is beyond useful. When I wrote about him I called him the Lord Monckton of LEED, the guy all the anti-greens will now go to for a soundbite trashing LEED and energy conservation regulations in general.
Lloyd said: "He went on and on for a day about piping, about boilers, about stuff that had little or no relevance."
What was the seminar about? Boilers and piping - designing them well and making sure they're installed per design - are extremely relevant to a comfortable, energy efficient (and therefore more sustainable) building.
Am I missing something?