Green Building Law Update : Green Building & Construction LEED AP, Lawyer & Attorney Chris Cheatham : Washington DC, Virginia, New York City

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I knew there was a reason I saved my law school text books.  

When I first heard of the class action lawsuit filed by Henry Gifford against the USGBC, my initial thought was "how in the world will he get a class certified?"  The initial hurdle for any class action lawsuit is to get one or more classes certified.  When a plaintiff, in this case Gifford, files a class action lawsuit, he is essentially asserting that there are a number of additional plaintiffs with similar complaints that should be included in the lawsuit and that he should be able to represent the additional plaintiffs. 

The plaintiffs goal is to convince the judge that a class or classes of people should be certified in the lawsuit.  Once certified, a class action lawsuit is much scarier for the defendant because financial liability scenarios go up drastically.  

Gifford is attempting to certify four separate classes:

1. All persons who paid for LEED certification in reliance on alleged deceptive marketing related to energy performance in LEED buildings.  

2. "All persons who design energy-efficient buildings and whose livelihoods are injured by USGBC's monopolization of the market through fraudulent and intentionally misleading representations in the marketing and promotion of the LEED product line. . ."

3.  All taxpayers whose city and state tax dollars are spent on the costs of LEED certification in publicly-commissioned buildings.

4.  Trades injured by USGBC's alleged deceptive trade practices because the trades lose money and time in having to comply with LEED certification even though the buildings are allegedly not saving energy.

Thankfully, I saved my Pleading and Procedure text book, which illuminates the four requirements of class certification.  I am by no means a class action lawyer but we can have fun speculating together as to whether any of Gifford's classes can be certified.  Here are the four requirements of class certification:  

Numerosity

"Rule 23(a)(1) requires that the class be so numerous that joinder of all members as individual named parties be 'impracticable.'"

Commonality

"Rule 23(a)(2) requires that there be questions of law or fact common to the class."

Typicality

"Rule 23(a)(3) requires that the claims or defenses of the named ('representative') party or parties be typical of those of the class as a whole."

Fair and adequate protection of the interests of the class

"Rule 23(a)(4) requires that the named party or parties provide fair and adequate protection of the interests of the class as a whole." 

Now its time for a pop quiz.  For this pop quiz, we are going to focus on Gifford's second proposed class:  "All persons who design energy-efficient buildings and whose livelihoods are injured by USGBC's monopolization of the market through fraudulent and intentionally misleading representations in the marketing and promotion of the LEED product line. . ."

1.  Do you think Gifford's class is numerous and all parties can not be included as regular plaintiffs?

2.  Are there questions of law or fact that are common to Gifford's class? 

3.  Are Gifford's claims typical of the class as a whole?

4.  Will Gifford provide fair and adequate protection for the interests of the class? 

Photo credit: Doctr