Gifford's LEED Lawsuit Takes New Shape
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You remember the $100 million dollar lawsuit against the US Green Building Council, right?
It’s back in the spotlight, and it has taken a new form through an amended complaint filed by multiple Plaintiffs. No longer is the Plaintiff asking for $100 million. No longer is the Plaintiff asserting a class action lawsuit that would have represented essentially anyone that ever took a step into a LEED building.
You can download a copy of Henry Gifford’s amended complaint (PDF), which was filed on February 7, 2011. Here are the basics of the complaint:
- The Plaintiffs are four design and construction professionals: Henry Gifford, Elisa Larkin, Matthew Arnold and Andrew Ask.
- The Plaintiffs allege that the USGBC has falsely led consumers to believe that LEED buildings are more energy efficient. The Plaintiffs claim that the USGBC’s own data proves that LEED buidings are actually not more energy efficient. The Plaintiffs also assert that the USGBC never actually verifies that buildings are designed and constructed to save energy.
- To prove the USGBC’s alleged lack of verification, the Plaintiffs point to the Northland Pines High School LEED certification challenge. You may recall that I covered this story extensively in 2010.
- The Plaintiffs do not assert how much they have lost due to the USGBC’s actions.
“USGBC's false advertising causes consumers of building design and construction advice to utilize a LEED-certified professional instead of Plaintiffs because consumers mistakenly believe that LEED-certified professionals will design a LEED-certified building that is verified by a third-party to be more energy-efficient than the building that Plaintiffs would design. . . .”
What do you think of this argument?
Personally, I think that it's the only argument that could make any sense. However, I never took any of the advertising of the USGBC to specifically warrant energy performance. In any event, the fact remains that USGBC and LEED are the big boys on the block, therefore get the most press and may cause issues for other design pros that don't have LEED AP after their names.
Whether this is actionable, only time will tell.
"Plaintiffs are losing customers because USGBC's false advertisements mislead the consumer into
believing that obtaining LEED certification incorporates construction techniques that achieve
energy-efficiency." For discovery, as the defendant, I would ask the names of all the projects lost due to LEED, and then get affidavits from the project manager stating that was not the reason.
I like Brian's suggestion. I don't see how the class could ever stand. Too many factors go into how a particular design professional gets chosen for a job. Each plaintiff has a separate situation. Additionally plaintiffs have burden of proving the underlying false advertising. Again, here, myriad factors go into the performance of each building.
It would be interesting to see if they could definitively gather that information for that discovery. In some ways, I understand the frustration. I'm not a LEED AP, even though I took all the classes years ago. If I recall correctly, when I had taken the classes, you didn't even NEED to be a LEED-AP to certify a building. It was just for an additional point.
I've been doing green now for about 12 years, and I know I know more than a lot of people who took a LEED test. But I also know that people who DON'T know me think I can't know as much (heaven forfend more) because I don't have the LEED AP. It's gotten to the point that I explain up front why I don't have it and that it was a conscious choice because it wasn't appropriate for my skill set or even the work they are requesting.
I also have to say that I remember being in the audience when the USGBC first premiered the info to that study. While I didn't know anywhere near what I know today about environmental claims, I remember thinking that it was misleading because they were equating that LEED saved dollars, presented as a 'whole' certification, when the only thing they could quantify and had data on was the energy.
And I think that Henry has blown a pretty big hole in the energy argument.
Back to the discovery question, I'm not sure how much it matters. I suppose it will be all about if the judge rules it germane. What I think will matter is all about perception. All Henry and company have to do is trot out a few contractors to say they believe that LEED APs are better because X.
It's all about accurately conveying a claim. I think it's muddy because USGBC could contend that they don't have control over how their members market themselves. But I know I have seen and heard instances where I didn't think USGBC was accurate. Sometimes I verified it, sometimes I did not. But I never had this burning desire to make an issue of it (I had plenty of others I was taking on!)
If you take a look at the latest FTC guidance, even if it draft, I think there is a huge potential for hand slapping on how USGBC lends its logos. They don't qualify that they are only certifying that a LEEP AP is knowledgeable about THEIR system. That's all it is. In the absence of anything else, it became synonymous with knowing what you're talking about. They would do better to market the green associate accreditation more because of the general natural of the designation.
I don't think I have room to get into USGBC logos and products.
Very interesting case, I hope to read more about it here.
More local code authorities, as well as the Federal government, are looking at mandating adherence to LEED in order for firms to qualify for projects. I think that there is a side issue of mandating an essentially proprietary, read private, product or service without an 'or equal' qualifier. Not to mention that LEED is not a substitute for any building codes.
I have to disagree with you, NMPacella. Municipalities are certainly looking at mandating it, but that is distinctly different from a code authority. I don't know a single enforcement official that would want to touch LEED for mandatory enforcement.
As for the private part, I'm not sure that holds in this case. There are many instances where a single set of criteria is included. I can see if the certification was mandated it would be problematic. But if the system is mandated, it's possible that an independent entity could build something to that LEED criteria without ever being LEED certified. There is always alternate means and methods.
I wonder what will happen with the timing of this lawsuit and the introduction of ASHRAE 189, CALgreen, and the IGCC. Will this begin to steer people away from LEED to avoid potential backlash should the lawsuit result in even more embarrassing and damaging information about LEED and the USGBC? It seems to me that there is a very real potential here for the tide to turn. LEED is becoming more and more difficult to pursue as rating system changes are handed down, is more and more expensive, and now the black eye of this lawsuit to address. If I were a customer shopping for a green building rating system/certificate, the safest thing to do might be to ditch LEED in favor of something better, less expensive, more credible, and less problematic from an image point of view. As an earlier poster points out, perception is everything.
I am a professional engineer with over 20 years of experience over the last 5 years I have been a member of design teams that were looking to obtain LEED certification. What people need to understand is that a LEED AP is a design professional that is knowledgable in LEED requirements. Some are specialized based on their area of expertise. The notion that a LEED AP will obtain someking of verification is ludicrous. I am an expert in building code requirements. This does not mean that I can guarantee that and authority having jurisdiction will accept a design. I cannot provide someking of "verification" that will ensure approval. Get real people and recognize that LEED APs provide a service like any other design professional on a design team. If you think otherwise you are a complete idiot and that is not the fault of the USGBC or GBCI.
LEED is not a perfect system and still has a lot to improve on. The steps the USGBC has taken to improve on things like mandatory monitoring of actual energy use vs design energy use really do a lot for the credibility of the system. It also opens the door for decertification of buildings under that system. How that will relate to the Giffords case I don't know but, from the peanut gallery, it looks harder to win based on that argument.
From the other argument of advertising more energy efficient buildings, I think that's inaccurate too since LEED states over and over again that certain credits like air filtration will reduce the building's energy efficiency. LEED argues that it is a whole-building rating system and not solely dependent on energy efficiency. If that's what a project is after, it would be far more cost-effective to simply use EnergyStar.
I paid USGBC for their my first certification class in 2009. I was already a member of CBPCA and BPI and HERS certified.
It became evident before the end of the first day that LEEDS was at best a partial scam to access high end construction projects and government monies. At worst, it appeared to be a group of powerful contractors and a marketing scheme.
They have no enforcement arm. They have no 'real' certification/evidence of their guidelines. They have no authority.---Only prestige, and I could not see what the prestige involved.
Although their building and building componants may be Green, they are in so way environmentally safe or non-toxic to humans. There is no experimental evidence of the real mechanical issues that go into their buildings just as there is no post testing for energy savings. The right kind of ventilation is an afterthought.
I asked for a refund, but was denied.
I think that they should win. I mean i am working in this field as well and believe it to be total b******t. It is just one more way to start regulating 1 more thing. I know at this point its not mandated but the reason people are spending the extra money for Leed and Green is because they are believing that they are going to save on there energy costs and at the same time "Saving" the planet (Al Gore has been completely disproved and admittied to lying)as well. Leed and Global warming are one in the same just a scam to get people to spend money on things that in the end will be disproved and then the next thing will come our way.