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Class Action Lawsuit Against LEED and USGBC Evolves
February 10, 2011
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In October 2010, Henry Gifford filed a lawsuit against USGBC alleging misrepresentation claims against USGBC and some of its individual founders regarding its LEED rating system. The crux of the suit centers on Gifford’s claims that USGBC and the LEED green building rating system makes false promises about energy performance of LEED buildings. The original complaint named Rick Fedrizzi, Rob Watson and other individuals as defendants, included misrepresentation style claims, and also included monopolization anti-trust based claims.

On Monday, Gifford and the other plaintiffs filed an Amended Complaint. Unlike the original claims, which included class action claims, the new lawsuit focuses on false advertising and consumer protection act claims. The new complaint drops the anti-trust and class action claims. They also dropped the individual defendants.

Energy performance has been an open sore for LEED that critics have pointed to, from the New York Times poking at the energy performance of a courthouse in Ohio to the USGBC’s own regional case study showing the energy usage was wildly different in performance compared to design modeling in Illinois. USGBC had already pushed through LEED for New Construction 3.0 which shifted credit focus far more towards energy issues than version 2.2.

The plaintiffs may have a difficult time demonstrating that they individually were harmed and have standing to sue. That does not mean that disconnects between energy performance and modeling are not a threat to USGBC. Indeed, the marketplace may present a greater threat to USGBC and LEED maintaining its current preeminence.

The advent of green building codes such as IGCC and ASHRAE 189.1 certainly represent a significant potential shift that is coming. Energy Star is already available for owners interested in focusing on actual energy performance as opposed to design modeling. Actual energy performance of buildings will occupy a greater focus as energy prices inevitably go up in the future. Design and construction standards, certification systems, and codes that are directed towards improving energy performance in the built environment would seem to have a better chance at ultimately prevailing over theoretical modeling.

Originally published in the Washington Business Journal, reprinted by permission.
 

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    Timothy Hughes is the managing shareholder of Bean, Kinney & Korman. He also represents clients in construction and commercial litigation, as well as corporate, contracts and general business matters. With over 20 years ...